Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 43 : Marking of hospital ships and coastal rescue craft
Text of the provision*
(1) The ships designated in Articles 22, 24, 25 and 27 shall be distinctively marked as follows:
(a) All exterior surfaces shall be white.
(b) One or more dark red crosses, as large as possible, shall be painted and displayed on each side of the hull and on the horizontal surfaces, so placed as to afford the greatest possible visibility from the sea and from the air.
(2) All hospital ships shall make themselves known by hoisting their national flag and further, if they belong to a neutral state, the flag of the Party to the conflict whose direction they have accepted. A white flag with a red cross shall be flown at the mainmast as high as possible.
(3) Lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service shall be painted white with dark red crosses prominently displayed and shall, in general, comply with the identification system prescribed above for hospital ships.
(4) The above-mentioned ships and craft, which may wish to ensure by night and in times of reduced visibility the protection to which they are entitled, must, subject to the assent of the Party to the conflict under whose power they are, take the necessary measures to render their painting and distinctive emblems sufficiently apparent.
(5) Hospital ships which, in accordance with Article 31, are provisionally detained by the enemy, must haul down the flag of the Party to the conflict in whose service they are or whose direction they have accepted.
(6) Coastal lifeboats, if they continue to operate with the consent of the Occupying Power from a base which is occupied, may be allowed, when away from their base, to continue to fly their own national colours along with a flag carrying a red cross on a white ground, subject to prior notification to all the Parties to the conflict concerned.
(7) All the provisions in this Article related to the red cross shall apply equally to the other emblems mentioned in Article 41.
(8) Parties to the conflict shall at all times endeavour to conclude mutual agreements, in order to use the most modern methods available to facilitate the identification of hospital ships.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2713  A significant number of provisions in the Second Convention regulate the status and protection to which various categories of vessels assisting the wounded, sick and shipwrecked are entitled. Article 43 addresses the marking of these vessels to facilitate their identification.
2714  It is acknowledged that the prescriptions for marking vessels contained in Article 43, which presume methods of warfare relying on close combat and visual means of identification, will in many cases be insufficient nowadays to identify a vessel as protected under humanitarian law, especially during hostilities involving long-distance warfare. Even so, those States that do have hospital ships comply perfectly with Article 43(1), suggesting that the prescribed markings carry a strong symbolic value. Compliance with these requirements serves to reassure the enemy that the ship for which a Party is claiming protection is in fact entitled to that protection under humanitarian law. For some purposes, however, it is clear that modern non-visual means of identification, which can be agreed upon under paragraph 8 of this article, as well as under Article 18 of Additional Protocol I, will better enable identification of vessels as protected and will likely do far more to enhance protection than painting the exterior of the ship and flying flags. Nevertheless, the system of marking set down in Article 43 is respected in State practice and remains relevant, especially as a means of establishing legitimacy. At the same time, modern methods of communicating the identity of ships, be they radio, satellite or other technologies, will be vital in ensuring that such vessels are respected and protected.
2715  The prescriptions in this article cover hospital ships, coastal rescue craft, coastal lifeboats, lifeboats of hospital ships, and small craft used by the medical service. The provision does not address the identification of personnel on board those vessels,[1] nor does it govern the marking of vessels covered by Articles 21 and 38.[2] With regard to the identification of medical aircraft (including helicopters, some of which may be based on board a hospital ship), see Article 39, which requires that the ‘heights, … times and … routes [of flights be] specifically agreed upon between the Parties to the conflict concerned’. There is no similar requirement for any of the vessels protected under the Second Convention.[3]
2716  Article 43 needs to be read in conjunction with several other articles: (i) Article 44, delineating when and for what purposes the distinctive signs provided for in Article 43 may be used; (ii) Article 45, dealing with legislation for the prevention and repression of any abuse of those distinctive signs; and (iii) Article 18 of Additional Protocol I and its Annex I for States party to that Protocol, regulating the use of light signals, radio signals and electronic means of identification.
2717  When it comes to the vessels referred to in Article 22 of Additional Protocol I, Article 18(4) of the Protocol indicates that they ‘shall be marked in accordance with the provisions of the Second Convention’. Lastly, regarding ‘medical ships and craft other than those referred to in Article 22 of Additional Protocol I and Article 38 of the Second Convention’, Article 23(1) of Additional Protocol I states that ‘such vessels should be marked with the distinctive emblem and as far as possible comply with the second paragraph of Article 43 of the Second Convention’.
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B. Historical background
2718  From the very first rules regulating the identification of hospital ships, the approach has been to regulate the flags they must display and the colours they must bear – white, with a green or red band – to facilitate their recognition and make them stand out.
2719  The 1868 Additional Articles relating to the Condition of the Wounded in War stipulated that ‘[t]he distinctive flag to be used with the national flag, in order to indicate any vessel or boat which may claim the benefits of neutrality, in virtue of the principles of this Convention, is a white flag with a red cross’ and that ‘[m]ilitary hospital ships shall be distinguished by being painted white outside, with green strake’.[4] For hospital ships operated by aid societies, the Additional Articles stipulated that they ‘shall make themselves known by hoisting, together with their national flag, the white flag with a red cross’ and that ‘[t]he outer painting … shall be white, with red strake’.[5] As was later observed,
At the time, the distinction made by the Additional Articles of 1868 was fully justified, as it was therein provided that naval hospital-ships were subject to capture, whereas private hospital-ships were not. Furthermore, the wounded, sick and shipwrecked on board a naval hospital-ship could be made prisoners, whereas those on board a private hospital ship could not.[6]
2720  The 1899 Hague Convention (III) basically left this regulation unchanged. The Convention nonetheless introduced further clarification and extended the rules to the lifeboats of hospital ships and to ‘small craft which may be used for hospital work’.[7] The 1907 Hague Convention (X) also kept the same approach, while further clarifying a number of points.[8] A similar approach can be found in Article 41 of the 1913 Oxford Manual of Naval War.
2721  The text proposed in 1937 by the Commission of Naval Experts retained most of the elements of the 1907 Hague Convention (X), with one important modification and one addition.[9] First, the Commission observed that, ‘while there was every reason for distinguishing between the colours of naval and private hospital-ships respectively in the Additional Articles of 1868, such was not the case under the Hague Convention, and this distinction might therefore have been abolished as long ago as 1899’.[10] Such being the case, the Commission ‘decided to adopt the same distinctive signs for all hospital-ships’.[11] Henceforth, in the Commission’s draft, all vessels were to be painted white with a ‘horizontal red band’. Second, in view of the new (as compared to 1907) long-range warfighting capabilities, including aerial warfare, a new paragraph was proposed to the effect that the ‘deck and the funnels and other superstructures of the ships’ not only be painted white, but also ‘display large red crosses, so that their distinctive emblems may be clearly visible to the land, air and naval forces of the enemy’.[12]
2722  While the text proposed by the Commission of Naval Experts was never adopted, in practice the belligerents during the Second World War often painted ‘large red crosses’ on the superstructures of their hospital ships.[13] Despite this, the ICRC observed in the aftermath of that conflict that the ‘lack of an up-to-date system of marking, visible at a great distance, was the cause of most of the attacks made on hospital ships’.[14] Thus the 1960 Commentary on the Second Geneva Convention went as far as to conclude that ‘[i]t had long been acknowledged that the system of marking hospital ships adopted in 1907, at a time when air forces did not exist, was completely inadequate’.[15]
2723  The Diplomatic Conference in 1949 retained the Commission’s proposal to do away with the differences in colours between military hospital ships and those of aid societies, and dispensed altogether with the system of coloured bands, instead giving greater prominence to the red cross and the red crescent as means of identification. While it adopted resolutions regarding means of communication for hospital ships, no further steps were taken to enhance the identification of vessels protected by the Second Convention apart from expressing the hope that ‘all High Contracting Parties … will arrange that, whenever conveniently practicable, such ships shall frequently and regularly broadcast particulars of their position, route and speed’.[16] A proposal for a rule in the Convention which would have made this compulsory was rejected because ‘no hospital ship could be called upon at all times or at set intervals to announce its course and it[s] speed’ and ‘a hospital ship can only make these broadcasts when it is conveniently possible’.[17] Furthermore, this proposal was rejected in view of Article 14 of the Second Convention, i.e. the right of warships of a belligerent Party to demand, under certain conditions, the surrender of the wounded, sick and shipwrecked on board hospital ships (among other categories of vessels): should hospital ships be under an obligation to communicate these details, it might lead to warships ‘hunting’ for hospital ships so as to exercise this right against them.[18] Thus, while hospital ships remain entitled to broadcast these details, they are under no obligation to do so.
2724  In essence, the 1949 Diplomatic Conference relied upon the approach used since the 1868 Additional Articles: maintaining the same rules regarding colour, the display of ‘dark red crosses’, and the flying of flags. All of these are visual means of identification, which require relatively close physical proximity to the vessel to be effective.
2725  The true innovation adopted in 1949 in relation to the marking of vessels protected by the Second Convention was the final paragraph of Article 43, which invited the Parties to conclude special agreements in order to identify ‘the most modern methods available to facilitate the identification of hospital ships’. In the context of Additional Protocol I, an annex entitled ‘Regulations concerning identification’ was adopted. This annex was amended once, in 1993.[19] Some of the methods provided for in the Regulations allow for non-visual methods of identification. In a contemporary context of long-distance warfare, the importance of such methods cannot be overstated.
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C. Paragraph 1: White exterior and dark red cross
2726  Paragraph 1 applies to all three categories of hospital ships covered by Articles 22, 24 and 25 and to coastal rescue craft covered by Article 27.[20] The rationale of this paragraph was that ‘the possibility of recognition from a long way off was of primary importance’.[21]
2727  The starting point to facilitate visual recognition of vessels covered by this paragraph is that ‘all exterior surfaces shall be white’.[22] Paragraph 1 does not use the word ‘painted’. This omission is deliberate ‘so as to leave the belligerents free to use other means of applying the colour’.[23] Of course it may be difficult to keep the vessel spotlessly white at all times.[24] This may not be held against it, as long as anybody can immediately recognize its overall white colour. Further, to implement the requirement in this paragraph, coastal rescue craft covered by Article 27 and merchant vessels transformed into hospital ships[25] will need to take immediate steps to ensure that all their exterior surfaces are white.[26]
2728  According to the text of the Convention, the only elements that will not be white on the exterior of hospital ships or of coastal rescue craft covered by Article 27 will be ‘one or more dark red crosses’ (or red crescents or red crystals).[27]
2729  In land warfare, in the context of the First Convention, it is well established that, in certain circumstances and under certain conditions, a commander may decide that the emblem should be removed, covered up (camouflaged), or not displayed at all.[28] Indeed, the protective emblem does not in and of itself confer protection;[29] it only serves as the visible manifestation of such protection and facilitates identification by enemy armed forces.[30] Therefore, failure to display the protective emblem neither automatically deprives a medical establishment or unit of protection, nor automatically leads to the conclusion that a medical establishment or unit has lost its protection.[31]
2730  In both the First and Second Conventions, the display of the ‘emblem of the red cross on a white ground’ takes place ‘under the direction of the competent military authority’.[32] This military authority might, in principle, decide to remove, cover up (camouflage) or not display at all the ‘dark red crosses’ (or red crescents or red crystals) on the vessels covered by Article 43(1). However, with specific reference to hospital ships, the committee dealing with the Second Convention during the 1949 Diplomatic Conference stated that ‘[t]here is no question … of camouflage; on the contrary everything will be done to facilitate recognition’.[33] Furthermore, unlike in land warfare, there is no known practice of military authorities removing, camouflaging or not displaying the distinctive emblem on hospital ships. In the difficult context of maritime warfare, where commanders may perceive any unidentified object on a radar as a threat, it is critical for vessels protected under the Second Convention to remain recognizable as such, including through the visual means of identification foreseen by Article 43.
2731  Just as Article 26 does not prescribe an absolute tonnage requirement, Article 43 does not specify the number of red crosses to be displayed on the vessels covered by paragraph 1, as that will depend on the size and shape of the vessel.[34] However, it does stipulate that red crosses must be ‘displayed on each side of the hull[35] and on the horizontal surfaces’. In deciding how to implement this requirement, it is necessary to keep in mind its rationale, i.e. ‘to afford the greatest possible visibility from the sea and from the air’.[36]
2732  No precise guidance is given on the size of the ‘dark red crosses’ either, except that they must be ‘as large as possible’.[37] This rule is meant to enhance protection. Lastly, neither the Convention nor its preparatory work give a clear indication of what exactly is meant by ‘dark red’. The only clarification provided at the Diplomatic Conference was that ‘dark red’ ‘provide[d] the most striking contrast to the white of the ship’.[38] However, this does not mean that a ship on which the red crosses are of another shade would not be protected. It is merely a recommendation intended to increase the security of a floating hospital by providing a better colour contrast.
2733  Lastly, while not explicitly stipulated as such in the Convention, the vessel’s name must be displayed in a colour other than white or red. For vessels with an IMO number, the same considerations apply.[39]
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D. Paragraph 2: National flag and white flag with a red cross
2734  According to paragraph 2, hospital ships covered by Articles 22 and 24 must hoist two flags: their national flag, with the Convention not regulating where it must be flown; and a ‘white flag with a red cross’, which must ‘be flown at the mainmast as high as possible’. The white flag may bear a red crescent or red crystal instead of a red cross.[40]
2735  The implication of the words ‘as high as possible’ is that, where a belligerent decides to hoist its national flag at the mainmast (and not, for example, at the stern), the flag with the red cross needs to be higher than the national flag. The rationale for this is to make sure that the flag with the red cross will be the first to appear over the horizon. A hospital ship may not fly a commissioning pennant.
2736  In addition to the above two flags, hospital ships operating within the framework of Article 25 will need to display ‘the flag of the Party to the conflict whose direction they have accepted’. No guidance is given as to where that flag is to be displayed.[41]
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E. Paragraph 3: Other vessels
1. Vessels covered by paragraph 3
2737  Article 43(3) addresses the identification of three other types of craft.
2738  First, it applies to ‘lifeboats of hospital ships’ which, on the basis of Article 26, are entitled to the protection of Article 22.[42]
2739  Second, it applies to ‘coastal lifeboats’, which are the lifeboats on coastal rescue craft or which are themselves small coastal rescue craft.[43] In many contexts, coastal rescue craft not covered by Article 27 are likely to be used to rescue people close to the coast where these craft are stationed. The markings prescribed in this article do not apply to them.
2740  Third, this paragraph applies to ‘all small craft used by the Medical Service’, i.e. the medical service of the armed forces. This is a category not otherwise mentioned in the Second Convention, let alone defined or addressed in terms of the protection it enjoys. Nevertheless, it is safe to state that, under the law regulating the conduct of hostilities, such craft will qualify as civilian objects. This category of small craft is not to be confused with that of ‘small craft which may be used for hospital work’ in the sense of Article 5, paragraph 3, of the 1907 Hague Convention (X), which is not necessarily restricted to those ‘used by the Medical Service’.[44] In terms of measures short of attack, ‘all small craft used by the Medical Service’ can arguably be considered to qualify as ‘vessels charged with … philanthropic missions’ in the sense of Article 4 of the 1907 Hague Convention (XI).[45] Beyond that, however, it is not settled whether they are ‘to be respected and protected’ and, if so, only ‘so far as operational requirements permit’, as is the case for coastal rescue craft covered by Article 43. Thus, the Second Convention regulates how they are to be marked without giving clear guidance as to their status and protection.
2741  For the three categories of vessels covered by the third paragraph, Article 43(1) applies, though less rigorously, i.e. they ‘shall be painted white’, but not necessarily on ‘all exterior surfaces’. Furthermore, contrary to paragraph 1, the word ‘painted’ explicitly appears here. During the 1949 Diplomatic Conference, this difference was explained as follows: ‘lifeboats required a more resistant colouring matter than large ships. That was why it had been stipulated that the former should be painted white.’[46] In addition, as with all vessels covered by Article 43(1), they must have ‘dark red crosses prominently displayed’.
2742  Regarding the stipulations in paragraph 1 that the white be on ‘all exterior surfaces’ and the dark red crosses be ‘as large as possible’ and ‘be painted and displayed on each side of the hull and on the horizontal surfaces’, paragraph 3 merely indicates that the vessels it covers must comply ‘in general’ with that identification system.[47] The same holds true with regard to paragraph 2. The words ‘in general’ mean ‘to the extent possible’, having regard to the size and shape of the craft, for some of them do not have decks or masts.
2743  If a colour other than white is chosen for reasons of better visibility, careful consideration must be given to the risks that come with using a marking not prescribed in the Convention. Any alternative way of marking a vessel covered by Article 43(3) must avoid any abuse or misuse of the emblem or of the other distinctive signs.[48]
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2. Fixed coastal installations
2744  The Second Convention says nothing about the marking of ‘fixed coastal installations’ covered by Article 27(2). According to the 1960 Commentary,
The Second Geneva Convention does not actually stipulate that such installations may or must be marked with the emblem of a red cross on a white ground, but that is an obvious gap in the provisions. It seems to us sound doctrine and a reasonable interpretation of the relevant texts to acknowledge that such installations may, in war-time, display the distinctive emblem even though they are not hospital buildings accommodating wounded persons, but boat-houses, hangars or workshops. If the enemy is to be able to respect them, as required under the Convention, he must be able to identify them from far off.
What method of marking should be used for coastal installations? Need they only display the red cross emblem, or should all the external surfaces of the installations be entirely painted white? The Convention makes no reference to this point, and it seems to us sufficient if they display the sign of the red cross on a white ground. Only in the case of vessels are all exterior surfaces required to be white, and there is no similar provision regarding hospitals on land. Obviously, however, there is nothing to prevent coastal rescue installations from being painted white.’[49]
Both this analysis and the proposals, inspired by policy considerations, remain relevant. In order to have certainty on this point, an ‘agreement between all the Parties to the conflict concerned’ is recommended.[50] Such an agreement will also be the best instrument to mutually recognize distinctive signs other than those referred to in Article 43, for example the various means of identification contained in the Regulations concerning identification (as amended in 1993) annexed to Additional Protocol I.
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F. Paragraph 4: Measures by night and in times of reduced visibility
2745  Paragraph 4 applies to all ‘ships and craft’, i.e. those covered by both paragraph 1 and paragraph 3. The paragraph applies ‘by night and in times of reduced visibility’ and creates an obligation (‘must’) to take ‘the necessary measures to render their painting and distinctive emblems sufficiently apparent’. This obligation to make the emblem as a protective device clearly visible to enemy armed forces is an obligation of conduct rather than of result. The obligation is, indeed, ‘subject to the assent of the Party to the conflict under whose Power they are’.
2746  As to the interpretation of the term ‘necessary measures’, a useful starting point is the report of the committee dealing with this provision during the 1949 Diplomatic Conference: ‘The Committee was not prepared to dictate any system of lighting, floodlighting, crosses illuminated from within, etc. The solution chosen will, for that matter, vary with the size and special construction of the ship, and with geographical and meteorological conditions, etc.’[51] For inspiration as to what may constitute ‘necessary measures’, resort may also be had to the provisions contained in Rules 22 (‘visibility of lights’) and 35 (‘sound signals in restricted visibility’) of the 1972 COLREG Convention.
2747  As regards the interpretation of the obligation to ‘take the necessary steps’, it is clear that if the emblem is to serve its purpose as the visible manifestation of protection, it should be visible from as far away, from as many sides and as early as possible. Neither the distance from which the emblem should be clearly visible nor its size is specified. Indeed, it would be impossible to do so, as the visibility of the emblem as a protective device is highly contextual and depends on a variety of factors, such as the terrain – and it is understood that the maritime context poses particular challenges in this regard – weather, time of day, and the types of weaponry and observation technology available to the adversary.[52]
2748  However, in 1936, in the 1970s, in 1989 and between 1993 and 1995, the ICRC, in cooperation with armed forces, conducted visibility tests from the air, from the ground and at sea, taking many of these variables into account. In terms of distance and size, the aerial tests in 1936 showed, for example, that in good weather conditions a red cross on a white ground, 5 metres square, placed on a roof, could hardly be distinguished from altitudes above 2,500 metres. This result was essentially confirmed in aerial tests conducted in 1989, with the flag no longer recognizable at a distance of 3,000 metres; a red cross flag measuring 10 metres across was no longer visible from 5,000 metres.[53] The 1989 aerial tests also found that the red crescent was less easily recognizable than the red cross.[54]
2749  At night or in bad weather, one way of increasing visibility is by lighting or illuminating the emblem.[55] The emblem is ‘lit’ when receiving light from a projector or a lamp; the white light projected onto it brings out its shape and colours. The emblem is ‘illuminated’ when red and white lights are placed on it in order to pick out the red emblem against the white ground. This may be done by placing strings of red electric bulbs along the contour of the emblem and white bulbs round the edge of the white ground.
2750  The added value of the tests conducted in the 1970s and thereafter, compared with the 1936 tests, was that they took into account technological developments in electronic observation techniques, including passive infrared, also known as thermal imaging,[56] and image intensifiers, such as night vision devices.[57] These techniques make it possible to identify targets when visibility is reduced, notably in poor weather or at night. From the experience of the Falkland/Malvinas Islands conflict (1982), it was reported that ‘even if the ship is completely illuminated, the red crosses are not visible at night. By day, they are also difficult to identify, particularly in poor weather.’ The ‘experimental use by the British during the conflict of an improvised flashing blue light (police car type) enables a ship to be identified with binoculars at a distance of seven nautical miles, whereas normal visibility was one nautical mile’.[58]
2751  The tests conducted in 1989 showed that when image intensifiers are used, the visibility of the emblem may be improved by using paint containing reflective materials.[59] Thermal imaging cameras, meanwhile, do not distinguish differences in colour but instead detect differences in temperature. Therefore, and following aerial, ground and maritime tests performed between 1993 and 1995, the use of special adhesive tapes with a high thermal reflection coefficient was recommended. Thus, the red cross or red crescent can be made up of these special tapes, providing a temperature contrast between the cross or the crescent and its white background. This contrast can then be detected by the thermal imaging camera.[60] Similar tests were carried out in 2000 and 2001 with what was to be adopted as the red crystal on a white ground.[61]
2752  Many of the findings of these tests have subsequently been incorporated into the Regulations concerning identification annexed to Additional Protocol I.[62] These regulations not only specify measures intended to ensure greater visibility of the protective emblem, but also provide for additional distinctive signals, such as radio and electronic identification, given that purely visual means of identification (to which Article 43 remains limited, at least inasmuch as those explicitly referred to are concerned) will mostly be insufficient, particularly in circumstances of modern maritime warfare enabling long-range targeting, as well as submarine warfare.[63] Parties may also wish to make the presence of medical facilities known by communicating their GPS coordinates to other Parties, as they may also do for the route of vessels protected under the Second Convention, prior to their voyage. Lastly, modern methods which allow for automatic identification may also play a useful role in the identification of hospital ships at night.[64]
2753  The obligation to take the ‘necessary measures’ is ‘subject to the assent of the Party to the conflict under whose Power they are’. No criteria are given that would determine under which circumstances such ‘assent’ must be granted or may be withheld. Reference can only be made to a similar provision in the First Convention, Article 42(4), which subjects such a decision to the yardstick of ‘in so far as military considerations permit’. In both instances, there has been a recognition that there may be circumstances in which the emblem as a protective device may not be displayed at all.
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G. Paragraph 5: Hospital ships detained on the basis of Article 31
2754  This paragraph applies only to hospital ships when they are in the highly exceptional situation of being ‘provisionally detained’ in accordance with Article 31.[65] When this right is exercised vis-à-vis a particular hospital ship, the detained ship ‘must haul down the flag’ either of ‘the Party to the conflict in whose service they are’ (this concerns military hospital ships covered by Article 22) or of the Party to the conflict ‘whose direction they have accepted’ (this concerns hospital ships of aid societies or private individuals covered by Articles 24 or 25).
2755   In this way, the vessel will make it clear that it is in a special position. It will not, however, be required to fly the flag of the Party to the conflict detaining it. Importantly, Article 43 only refers to the aforementioned national flags; the ‘white flag with a red cross’ must remain at the mainmast.
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H. Paragraph 6: Flags to be displayed by coastal lifeboats operating from occupied territory
2756  The inclusion of this paragraph, which did not appear in the 1907 Hague Convention (X) nor in any of its predecessors,
met the wishes of a great number of national lifeboat institutions belonging to formerly occupied countries, which had experienced difficulties during the [Second World War]. Crews of lifeboats had refused to put to sea under the flag of the Occupying Power. [The Rapporteur] would have preferred such lifeboats to have been able to operate under the [r]ed [c]ross flag only. The suggestion, however, had been considered dangerous by other delegates, who thought it necessary to be able to recognize the country of origin of the lifeboats.[66]
2757  The purpose of this paragraph is thus to allow coastal rescue craft, including smaller lifeboats, operating from a base in an occupied territory to continue to fly both their own national flag and a flag with the red cross, red crescent or red crystal emblem when they are away from their base. The Occupying Power may not force these coastal rescue craft to display its own flag. Paragraph 6 deals only with the flag that coastal rescue craft are entitled to display. As to their colours, see Article 43(1) and (3).
2758  The words ‘when away from their base’ must be interpreted as being as of the moment they leave their base, i.e. the coastal installation where they are stationed in or near the harbour. Conversely, this means that the Occupying Power may adopt legislation prohibiting these lifeboats from displaying their national flag while in the base.
2759  There is one procedural condition: ‘all the Parties to the conflict concerned’ must receive ‘prior notification’. The text does not clarify who needs to issue this notification, nor the information it must contain. From the preparatory work it is clear that the drafters’ intention was to place this obligation on the Occupying Power, and that the notification must concern the fact that the coastal rescue craft in question would be displaying both flags.[67] Logically, the Occupying Power must notify any and all Parties who are operating in the area so that they are able to respect such craft. The notification requirement has not been removed by Article 22(3) of Additional Protocol I, since that provision only refers to the notification envisaged by Article 27 of the Second Convention.
2760  By using the wording ‘if they continue to operate with the consent of the Occupying Power’, paragraph 6 would seem at first to imply that the Occupying Power is entitled to refuse its consent to the continued operation of the coastal lifeboats from the territory it occupies. Doing so will only be lawful, however, if it does not violate the conditions of Articles 16, 56 and 63(2) of the Fourth Convention (the latter mentioning explicitly ‘the organization of rescues’).[68]
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I. Paragraph 7: Red crescent and red crystal
2761  The purpose of paragraph 7 is to capture the fact that, every time Article 43 mentions the ‘red cross’, it includes all of the emblems mentioned in Article 41, as interpreted nowadays. Thus, a Party to an armed conflict may equally decide to display ‘one or more dark red crescents’ on vessels addressed by paragraph 1. The same holds true for the red crystal.[69]
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J. Paragraph 8: Modern methods
2762  Some details aside, the origin of the visual means of identification foreseen by the Second Convention can be traced back to the 1868 Additional Articles relating to the Condition of the Wounded in War. This was appropriate at a time when naval warfare was mostly fought within close range. This is no longer the case, and the inadequacy of the regulatory framework was explicitly acknowledged both during the 1949 Diplomatic Conference and during the preparatory work for the 1977 Additional Protocol I.[70] This led to the adoption of Annex I to the Protocol, entitled ‘Regulations concerning identification’. This annex, in turn, was amended once, in 1993.[71] Around the same time, the ICRC published a manual on the subject, which was set up ‘not [as] a legal textbook but a handbook for commanders of naval and air force units and others in charge of transports protected’ under international humanitarian law.[72] In parallel, various modern means of identification have been proposed in the academic literature, but none of these have been adopted in practice.[73]
2763  The experience of the Falkland/Malvinas Islands conflict (1982) was that, even though the hospital ships were marked as per the requirements of Article 43, these ‘traditional marking methods proved to be insufficient in view of the modern techniques of maritime warfare and the particularly difficult climatic conditions in the South Atlantic’.[74]
2764  It is against this background that paragraph 8 will have considerable importance if, in the future, there is an armed conflict at sea.
2765  The paragraph contains an obligation of conduct: the Parties to the conflict ‘shall at all times endeavour’ to conclude special agreements in the sense of, and which will need to comply with the conditions of, Article 6.
2766  In such an agreement, the Parties can mutually establish which are the ‘most modern methods available to facilitate the identification of hospital ships’.[75] While the text only refers to ‘the identification of hospital ships’, there is no reason why the ‘mutual agreements’ could not pertain to other categories of vessels protected under the Second Convention, some of which are explicitly mentioned in Article 43. Depending on the circumstances, it may be advisable to inform neutral Powers of such agreements.[76]
2767  In view of contemporary long-range fighting – and submarine – capabilities, agreements between the Parties to the conflict will be critical in ensuring that vessels protected under the Second Convention are effectively identified, for example using the latest techniques to accurately capture a hospital ship’s acoustic and electromagnetic signature. A single method of identification will rarely suffice: a combination of several methods is preferable.
2768  Modern methods allow Parties to a conflict to identify vessels from a distance by various electronic means long before they can be sighted. Examples of such methods are the Automatic Identification System (AIS), Digital Selective Calling (DSC), and Long-Range Identification & Tracking (LRIT). Modern methods also allow vessels to make their identity, or type,[77] known through satellite tracking and transponders, among other systems. These systems, particularly when combined, enable Parties to identify and therefore respect protected vessels, and should eliminate the possibility of error.
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Select bibliography
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Cauderay, Gérald C., ‘Visibility of the distinctive emblem on medical establishments, units, and transports’, International Review of the Red Cross, Vol. 30, No. 277, August 1990, pp. 295–321.
– ‘Means of identification for protected medical transports’, International Review of the Red Cross, Vol. 34, No. 300, June 1994, pp. 266–278.
de Mulinen, Frédéric, ‘Signalling and Identification of Medical Personnel and Material’, International Review of the Red Cross, Vol. 12, No. 138, September 1972, pp. 479–494.
Doswald-Beck, Louise, ‘Vessels, Aircraft and Persons Entitled to Protection during Armed Conflicts at Sea’, British Yearbook of International Law, Vol. 65, 1994, pp. 211–301.
Eberlin, Philippe, ‘Modernization of protective markings and signalling’, International Review of the Red Cross, Vol. 19, No. 209, April 1979, pp. 59–83.
– ‘Identification of hospital ships and ships protected by the Geneva Conventions of 12 August 1949’, International Review of the Red Cross, Vol. 22, No. 231, November–December 1982, pp. 315–328.
ICRC, Manual for the Use of Technical Means of Identification by Hospital Ships, Coastal Rescue Craft, Other Protected Craft and Medical Aircraft, 2nd edition, ICRC, Geneva, 1995.
Loye, Dominique, Commentary on Annex I (as amended 30 November 1993) to Additional Protocol I, ICRC, Geneva, 2002.

1 - See Article 42.
2 - On that matter, see the commentaries on Article 21, para. 1891, and Article 38, para. 2562. See also Eberlin, 1982, p. 316.
3 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 187: ‘The Committee [dealing with maritime warfare] was unable to agree to a condition of a similar kind applicable to hospital ships, as it feared that in notifying the enemy of the course they were to follow, this would give valuable information regarding the safety of navigation in certain maritime zones.’
4 - Additional Articles relating to the Condition of the Wounded in War (1868), Article 12(1) and (3).
5 - Ibid. Article 13(3).
6 - Naval Expert Report of 1937, p. 51. Under contemporary international law, all three categories of hospital ships are exempt from capture; see the commentaries on Article 22, section C.2.c Article 24, section C.3, and Article 25, section C.3.
7 - Hague Convention (III) (1899), Article 5. For the discussion of this article, see Proceedings of the Hague Peace Conference of 1899, p. 37.
8 - Hague Convention (X) (1907), Article 5. For the discussion of this article, see Proceedings of the Hague Peace Conference of 1907, Vol. III, pp. 296–299.
9 - Naval Expert Report of 1937, draft article 24, pp. 49–50: The ships mentioned in Articles 9, 10 and 11 [all three categories of hospital ships] shall, to distinguish them, be painted white, with a horizontal red band approximately one metre and a half in width. The boats of such ships, together with any small craft used for hospital work, shall be similarly painted. The deck and the funnels and other superstructures of the ships mentioned in paragraph 1 of the present Article shall be painted white and shall display large red crosses, so that their distinctive emblems may be clearly visible to the land, air and naval forces of the enemy. All hospital-ships shall make themselves known by hoisting, with their national flag, a white flag with the red cross and, also, if they possess the nationality of a neutral State, by flying at the mainmast the national flag of the belligerent under whose direction they are placed. Hospital ships provisionally detained by the enemy under Article 12, shall haul down the national flag of the belligerent to whom they are attached. Should the ships and boats above-mentioned desire to ensure by night the respect to which they are entitled they shall, subject to the consent of the belligerent they are accompanying, take the necessary steps to render the painting and the distinctive emblems by which they are characterized sufficiently apparent.
10 - Ibid. p. 52.
11 - Ibid.
12 - Ibid. pp. 49–50.
13 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 241.
14 - Ibid. and 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, p. 215, which describes how one Party to that conflict had indicated to the ICRC that the attacks on these hospital ships were due to faulty markings; aircraft pilots had been unable to recognize the ships soon enough, as they were lying between warships, or because their markings were invisible from the air, or were not illuminated at night. In some cases, close examination of the photographs, taken during the attack, with a lens was required to recognize the distinguishing markings. See also the commentary on Article 22, para. 1984 and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 205; Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 4186; and J.C. Mossop, ‘Hospital Ships in the Second World War’, British Yearbook of International Law, Vol. 24, 1947, pp. 398–406, at 401–403.
15 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 241.
16 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, Resolution 7, p. 362. For a discussion of Resolutions 6 and 7 of the Conference, see the commentary on Article 34, para. 2393.
17 - See Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, 34th Session, pp. 49–67, at 62 and 63.
18 - See ibid. pp. 61–62.
19 - Additional Protocol I, Annex I, Regulations concerning identification (as amended in 1993).
20 - For the identification of coastal lifeboats not meeting the conditions of Article 27, see Article 43(3). For the special situation of coastal lifeboats operating from occupied territory, see Article 43(6).
21 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 160.
22 - See also ibid. p. 205: ‘Both on psychological and visual grounds, white was retained as their colour, although not all Delegations agreed on this point, since they considered that other colours were more easily distinguishable in the conditions of maritime warfare.’ For a similar approach, see International Life-Saving Appliance Code (1996), Chapter 1.2.2.6, which requires that all life-saving appliances must ‘be of a highly visible colour on all parts where this will assist detection’.
23 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 160.
24 - See also Eberlin, 1982, p. 319.
25 - On such transformation, see the commentary on Article 22, section C.1.d.
26 - This happened at the beginning of the Falkland/Malvinas Islands conflict (1982), where both sides converted other categories of vessels into hospital ships, and painted them in accordance with Article 43(1); see Eberlin, 1982, p. 315.
27 - For further information on use of the ‘emblem of the red cross’, see Article 41. On the possibility of using the red crescent or red crystal, see Article 43(7) and section I of this commentary.
28 - See the commentary on Article 42 of the First Convention, paras 2651–2652.
29 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 173.
30 - See the commentary on Article 41, para. 2675. See also Additional Protocol I, Annex I, Regulations concerning identification (as amended in 1993), Article 1(2), and Additional Protocol III, Preamble, para. 4. The emblem’s fundamental purpose as the visible manifestation of protection is also recognized in the national legislation of numerous countries; see e.g. Bosnia and Herzegovina, Emblem Law, 2002, Article 2; Colombia, Emblem Law, 2004, Article 2(1); Mali, Emblem Law, 2009, Article 3; and Philippines, Emblem Act, 2013, Section 3(f).
31 - See e.g. Australia, Manual of the Law of Armed Conflict, 2006, p. 9-2, para. 9.3; United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 132, para. 7.25.1; and United States, Army Health System, 2013, p. 3-7, para. 3-23. See also Lewis C. Vollmar, Jr., ‘Military Medicine in War: The Geneva Conventions Today’, in Thomas E. Beam and Linette R. Sparacino (eds), Military Medical Ethics, Vol. 2, Office of The Surgeon General, United States Army, Washington, D.C., 2003, pp. 739–771, at 748.
32 - First Convention, Article 39, and Second Convention, Article 41.
33 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 188.
34 - Ibid. p. 160. A very different, and much more prescriptive, system in this regard can be found in the Draft Conventions adopted by the 1948 Stockholm Conference, p. 45.
35 - A proposal to this effect had initially been rejected by the 1937 Commission of Naval Experts; see Naval Expert Report of 1937, p. 52: In its draft for the revised Maritime Convention, the International Committee had also included a provision to the effect that the hulls of hospital-ships should carry some distinctive sign both fore and aft. This suggestion was, however, rejected by the Commission on the grounds that such signs would detract from the visibility of the red band.
36 - For further considerations, see Eberlin, 1982, p. 319.
37 - See also Additional Protocol I, Annex I, Regulations concerning identification (as amended in 1993), Article 4: ‘The distinctive emblem (red on a white ground) shall be as large as appropriate under the circumstances.’
38 - See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 205.
39 - For a similar approach, see SOLAS Convention (1974), Chapter XI-1, Regulation 3, para. 5.1: ‘The permanent marking shall be plainly visible, clear of any other markings on the hull and shall be painted in a contrasting colour.’ The two US military hospital ships display their IMO number in black, on the stern.
40 - See section I.
41 - In a clarification not retained by the Second Convention, Article 5, paragraph 4, of the 1907 Hague Convention (X) read: ‘All hospital ships shall make themselves known by hoisting, with their national flag, the white flag with a red cross provided by the Geneva Convention, and further, if they belong to a neutral State, by flying at the mainmast the national flag of the belligerent under whose control they are placed.’
42 - For a discussion, see the commentary on Article 26, section C.2.b.
43 - For the special situation of coastal lifeboats operating from occupied territory, see section H.
44 - For a discussion of the latter, see the commentary on Article 27, paras 2153–2155.
45 - Hague Convention (XI) (1907) relative to certain Restrictions with regard to the Exercise of the Right of Capture in Naval War, The Hague, 18 October 1907.
46 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 160.
47 - For guidance on this issue, resort may be had to the International Life-Saving Appliance Code (1996), in particular Chapters 1.2.2.6. and 4.2.7, 4.3.6 and 4.4.9.
48 - In practice, certain life rafts, including on hospital ships, as well as vessels larger than those covered by Article 43(3), are painted a bright ‘safety orange’/‘international orange’. Some of them, particularly the larger ones, also display a ‘dark red cross’.
49 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 244–245.
50 - See also the commentary on Article 44, para. 2785.
51 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 205. For a different approach, see Draft Conventions adopted by the 1948 Stockholm Conference, p. 45; these drafts were much more prescriptive on this particular point. For a discussion, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 161: [T]he majority of the Working Party had preferred [what is now para. 4] (which was a replica of the last paragraph of Article 5 of the Xth Hague Convention, with a slight alteration) to the complicated prescriptions of the Stockholm text, which were too rigid and would be difficult to apply in certain circumstances. Belligerents would have greater freedom in the matter of illuminating the crosses on hospital ships.
52 - See e.g. Sweden, IHL Manual, 1991, p. 156.
53 - Cauderay, 1990, p. 300.
54 - Ibid. pp. 300–308, 315 and 317.
55 - See Additional Protocol I, Annex I, Regulations concerning identification (as amended in 1993), Article 5(2).
56 - By this means, the electromagnetic energy emitted in the infrared band by objects is transformed into electrical signals, which are then used to draw a map of the hot points on the landscape, thus forming an image which can be observed, for example, through field glasses or on a screen. See Cauderay, 1990, p. 297, fn. 3, and Loye, p. 198, fn. 1.
57 - These are electro-optical devices which amplify the light levels of objects lit by low light at night. The main component is a light amplification tube which converts a low-level polychromatic image (white light) into an electronic image, which is then electronically amplified and transformed into a more intense, usually dull green, monochromatic image; Cauderay, 1990, p. 297, fn. 4.
58 - Sylvie-Stoyanka Junod, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1985, p. 25. See also, at p. 12: this armed conflict ‘revealed the shortcomings of the marking and signaling of medical transports (hospital ships, medical helicopters) and of the communication systems currently in use, and the need for their adaptation to modern techniques.’
59 - Ibid. p. 310. See also Colombia, Decree No. 138, 2005, Article 4(6), which explicitly provides for the possibility of using reflective materials to ensure visibility at night.
60 - See Loye, pp. 198–202.
61 - 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, p. 187, fn. 35.
62 - See Additional Protocol I, Annex I, Regulations concerning identification (as amended in 1993), Articles 4–5.
63 - Ibid. Articles 6–9. Parties may also wish to authorize the use of electronic markings in relation to computer networks and data, for example. See also Tallinn Manual 2.0 on the International Law Applicable to Cyber Operation, 2nd edition, Cambridge University Press, 2017, Rule 133, p. 517.
64 - See section J.
65 - For a discussion, see the commentary on Article 31, section D.4.
66 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 161.
67 - Ibid.
68 - See Jean de Preux, ‘Protection du sauvetage maritime côtier’, in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-rouge en l’honneur de Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 103–111, at 108–109, and Gilbert Gidel, ‘La protection des embarcations de sauvetage’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 37, No. 441, September 1955, pp. 549–558, at 556.
69 - For a discussion, see the commentary on Article 41, para. 2678. See also United States, Law of War Manual, 2016, para. 7.12.3.4. Currently, however, there is no hospital ship displaying either the red crescent or the red crystal.
70 - Report of the Conference of Government Experts of 1972, p. 55: During discussion in the Sub-Commission, the adequacy of marking requirements for hospital ships, as specified in Article 43 of the Second Geneva Convention, was called into question. The Sub-Commission was unable to formulate recommendations on this subject. A majority of technical experts held the view that detailed examination of this question should be undertaken by a group having expertise in marine and naval matters. Ibid. p. 59: The visual marking system of Article 43 is ‘neither sufficient nor effective, and … perhaps the whole of Article 43 needs to be reviewed’.
71 - See also para. 2723. On the basis of the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, para. 172, ‘[h]ospital ships, small craft used for coastal rescue operations and other medical transports are encouraged to implement the means of identification set out’ in that annex. See also 25th International Conference of the Red Cross, Resolution III, Identification of medical transports, November 1986.
72 - ICRC, Manual for the Use of Technical Means of Identification by Hospital Ships, Coastal Rescue Craft, Other Protected Craft and Medical Aircraft.
73 - See e.g. Eberlin, 1988, pp. 505–518; Daniel P. O’Connell, ‘International law and contemporary naval operations’, British Yearbook of International Law, Vol. 44, 1970, pp. 19–85, at 60–61. See also Cauderay, 1994, pp. 59–83.
74 - Sylvie-Stoyanka Junod, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1985, p. 25. For more details, see Eberlin, 1982, pp. 315–328.
75 - Article 1(4) of the Regulations concerning identification (as amended in 1993) annexed to Additional Protocol I contains a similar idea: ‘The High Contracting Parties and in particular the Parties to the conflict are invited at all times to agree upon additional or other signals, means or systems which enhance the possibility of identification and take full advantage of technological developments in the field.’
76 - ICRC, Manual for the Use of Technical Means of Identification by Hospital Ships, Coastal Rescue Craft, Other Protected Craft and Medical Aircraft, p. 32.
77 - See International Telecommunication Union, Radio Regulations, Articles, edition of 2016, Article 33, Section III, ‘Medical transports’ (‘as defined in the 1949 Geneva Conventions and Additional Protocols’), para. 33.30, for information about this optional ‘use of radiocommunications for announcing and identifying medical transports’, with detailed regulations in the article. See also International Telecommunication Union, Recommendation ITU-R M.1371-5 (02/2014), Technical characteristics for an automatic identification system using time division multiple access in the VHF maritime mobile frequency band, 2014, p. 114, Table 53, entitled ‘Identifiers to be used by ships to report their type’, with ‘Identifier No. 58’ to be used for ‘Medical transports (as defined in the 1949 Geneva Conventions and Additional Protocols)’.