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Commentary of 2017 
Article 34 : Discontinuance of protection of hospital ships
Text of the provision*
(1) The protection to which hospital ships and sick-bays are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming in all appropriate cases a reasonable time limit, and after such warning has remained unheeded.
(2) In particular, hospital ships may not possess or use a secret code for their wireless or other means of communication.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Paragraph 1: Loss of protection
  • D. Paragraph 2: No possession or use of a secret code
    A. Introduction
    2361  Hospital ships and the sick-bays of warships must observe towards the opposing belligerent the protections which they claim for themselves and which is their right under the Convention. As they do not participate in the hostilities, they must resolutely refrain from all interference, direct or indirect, in military operations. If a hospital ship commits an act harmful to the enemy, it seriously compromises not only its own protection, but also the safety of the wounded, sick and shipwrecked on board. Therefore, Article 34(1) does not provide merely for the loss of protection of hospital ships and sickbays if they are used to commit, outside their humanitarian duties, acts harmful to the enemy. It also sets down procedural safeguards, insofar as the aggrieved Party to the conflict must issue a warning and, if appropriate, set a time limit in order to give the hospital ship or sickbay the opportunity to cease the offending conduct.
    2362  Article 34(2), prohibiting the use or possession by hospital ships of a secret code for the wireless or other means of communication, is an expression of the High Contracting Parties’ ambivalence towards means of communication on board hospital ships, since these could be misused for the transmission of militarily valuable information. The practice of both world wars provides sufficient evidence that such suspicions were not unfounded.[1] The prohibition is, however, not absolute in character. A comparison of the equally authentic English and French texts reveals that hospital ships may use a secret code for receiving messages. Moreover, in view of the development of modern communications technology, which includes satellite communications, the prohibition may no longer have the same practical significance as in 1949.
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    B. Historical background
    2363  Whereas the 1899 Hague Convention (III) is silent on the discontinuance of the protection of hospital ships,[2] Article 8(1) of the 1907 Hague Convention (X) provides that: ‘Hospital ships and sick wards of vessels are no longer entitled to protection if they are employed for the purpose of injuring the enemy.’ This provision, which was in part borrowed from Article 7 of the 1906 Geneva Convention,[3] was regarded as ‘self-evident’ and no further discussion was considered necessary.[4]
    2364  In contrast, the presence of ‘wireless telegraphy apparatus’ on board hospital ships was a contentious issue. Article 8(2) of the 1907 Hague Convention (X) provides, inter alia, that ‘the presence of wireless telegraphy apparatus on board … is not a sufficient reason for withdrawing protection.’ This provision was arrived at after a lengthy discussion and was accepted by only a narrow majority.[5] Those opposed to it doubted the wisdom of the rule because ‘their presence is … of a nature to beget suspicions’.[6]
    2365  During the First World War, hospital ships were captured and condemned because they had been used as signalling ships for military purposes, i.e. they had used their signal flags and lights in order to transmit militarily valuable information to the armed forces they belonged to.[7] The 1937 Commission of Naval Experts, in its draft article 15, reproduced Article 8 of the 1907 Hague Convention (X) with a number of modifications. The phrase ‘if they are employed for the purpose of injuring the enemy’ was replaced by ‘if they are used for the purpose of committing acts harmful to the enemy’ (draft article 15(1)). The provision on sickbays was retained, although the Commission was aware that the obligation to protect them ‘merely arises in the event of fighting on board’ and that in modern warfare ‘boarding is highly improbable’.[8] Paragraph 2 of draft article 15 was a new clause, which provided that: ‘It shall, in particular, be forbidden for hospital-ships to use any secret code for communications, either by signals or by wireless telegraphy.’ Although it was adopted without discussion, the ‘introduction of this provision … was opposed by the Swedish Red Cross and also by the American Red Cross, which pointed out that the use of generally intelligible codes by hospital-ships would enable the enemy to obtain information of naval value’.[9]
    2366  At the Preliminary Conference of National Societies in 1946, the Commission accepted draft article 15, but suggested that its paragraph 2 should be made the subject of a new rule, to be worded as follows: ‘Hospital-ships provided with wireless shall have no secret code. All their communications by signal or by wireless must be in clear.’[10] The 1947 Conference of Government Experts approved draft article 15, which became its draft article 16, but amended the first paragraph to read ‘and after warning which has met with no response’.[11] Draft article 29 adopted by the 1948 International Conference of the Red Cross in Stockholm, which eventually served as a basis for discussion at the Diplomatic Conference of Geneva of 1949, was identical to the 1947 proposal, with the addition, in the first paragraph, of the words ‘naming a reasonable time limit’.[12]
    2367  At the 1949 Diplomatic Conference, draft article 29 was discussed at some length. The British delegation submitted four proposals, two of which are of relevance to Article 34 as it stands today.[13] The first involved deletion of the reference to sickbays, ‘as the idea seemed to be out of date’. The second concerned the deletion of the warning requirement because, in maritime warfare, it was not necessary to allow time to evacuate the wounded. The first proposal was rejected by the French delegation, citing ‘a case, during the last war, when a battle had taken place on a warship which had necessitated the protection of the sick-bays’.[14]
    2368  With regard to the second proposal, the delegations were divided. The Drafting Committee proposed to split draft article 29 ‘into two Articles, 29 and 29A, as had been done in the case of the corresponding draft article 16 of the Wounded and Sick Convention. The phrase “naming a reasonable time limit” had been left to Committee I to consider, but [the Rapporteur] reminded them that in the case of Article 16 of the Wounded and Sick Convention they had already adopted the formula “naming, in all appropriate cases, a reasonable time limit”.’[15]
    2369  In its report, Committee I emphasized that the ‘protection of hospital ships may cease in certain conditions, which are mainly those laid down in the Wounded and Sick Convention, Article 16’. Given the special conditions of war at sea, however, the Committee emphasized that ‘hospital ships could not employ or even be in possession of a secret code for their transmissions’.[16] Draft article 29, as proposed by Committee I, was identical to Article 34 as adopted by the 1949 Diplomatic Conference.[17] Interestingly, the equally authentic English and French[18] versions of paragraph 2, as finally adopted, differ considerably. For a discussion of this difference, see section D.1.
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    C. Paragraph 1: Loss of protection
    2370  It follows from the wording of paragraph 1 (‘shall not cease unless’) and its context that hospital ships and sickbays will lose their protection only in exceptional circumstances. While paragraph 1 applies only if they are used to commit ‘acts harmful to the enemy’, it must not be forgotten that any violation of the conditions for the employment of hospital ships as laid down in Article 30 of the Second Convention will result in a loss of specific protection, not necessarily rendering the hospital ship liable to direct attack, but depriving it of its protection against capture (and condemnation).
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    1. Scope of application
    2371  Paragraph 1 applies only to hospital ships and sickbays. Hospital ships are those protected under Articles 22, 24 and 25. The protection of the sickbays on board warships, under Article 28, is limited to situations of fighting occurring on board.[19]
    2372  This begs the question why coastal rescue craft have not been included, although they are explicitly mentioned in Articles 30, 31 and 32 of the Convention. In view of the hesitancy of some States to agree on their protection,[20] there was certainly no intention to spare them if they were used to commit ‘acts harmful to the enemy’. Subject to further safeguards,[21] coastal rescue craft will lose their protection against capture if they are not innocently employed in their normal role. If, by use, i.e. by committing ‘acts harmful to the enemy’, they qualify as military objectives, they are liable to attack.[22] If they do not comply with the conditions of their employment under Article 30, they will be liable to capture. However, the records of the 1949 Diplomatic Conference provide no answer as to why they were not included in paragraph 1. Therefore, it is less certain, in the absence of any reference to them in the present paragraph, that they can claim entitlement to the procedures mentioned in the second sentence regarding due warning and a reasonable time limit. For reasons of military security, it might have been difficult to extend those procedures to them, precisely because they may be very rapid, and therefore difficult to locate. This position has been confirmed by the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, according to which the rule on a prior warning and time limit does not apply to coastal rescue craft. They may, however, be attacked only if four cumulative conditions are met.[23]
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    2. Acts harmful to the enemy
    2373  The discontinuance of the protection of hospital ships and sickbays arises only if they are used ‘to commit, outside their humanitarian duties, acts harmful to the enemy’. The Convention provides some guidance as to the meaning of this phrase insofar as the conditions not depriving them of protection are enumerated in Article 35. If those conditions are present, the acts in question cannot be considered ‘acts harmful to the enemy’. Still, the exact meaning of the phrase ‘acts harmful to the enemy’ is unclear. Nevertheless, it is possible and necessary to define it with a view to providing further guidance.
    2374  The adjective ‘harmful’ means ‘causing or likely to cause harm’, i.e. ‘physical injury, material damage, actual or potential ill effect’.[24] The ICRC provided a definition according to which the phrase meant ‘acts the purpose or effect of which is to harm the adverse Party, by facilitating or impeding military operations’.[25] Indeed, it follows from the context and the object of the provision that limiting the meaning of the phrase to acts causing, or intended to cause, physical injury or material damage would be too narrow. With a view to armed hostilities, acts and uses that either facilitate a Party’s own military operations, or impede the enemy’s, may, depending on the circumstances, be considered ‘an effective contribution to military action’ in the sense of the customary definition of military objectives.[26]
    2375  Such harmful acts would, for example, include carrying able-bodied combatants or arms, or deliberately providing cover for a warship. Other activities qualifying as ‘acts harmful to the enemy’ include laying mines, minesweeping (unless it is for a Party’s own protection), cutting undersea cables and pipelines, visiting and searching merchant vessels, attacking warships or merchant vessels, and becoming incorporated into or assisting the enemy’s intelligence system.[27] Furthermore, acts harmful to the enemy include the interrogation of enemy prisoners of war on board hospital ships, when the said interrogation seeks to acquire information beyond what they are required to disclose on the basis of Article 17 of the Third Convention.[28]
    2376  In this context, it needs to be stressed that sailing under convoy of enemy warships or military aircraft, although theoretically qualifying as an ‘act harmful to the enemy’,[29] is irrelevant in practice because it will be difficult to establish whether a hospital ship is accompanying a warship or being escorted by it,[30] the former being, in times of armed conflict, a perfectly natural activity for a hospital ship.
    2377  A highly problematic issue is the arming of hospital ships and sickbays in excess of what is permissible under Article 35(1) and (3) of the Second Convention.[31] It has been reported that the hospital ship USNS Comfort, prior to its deployment during the 2003 armed conflict between Iraq and the United States of America, was equipped with ‘weapons like .30-cal. and .50-cal machine guns … , exclusively for defence, to fend off attacks by swarming, heavily armed speed boats or suicide craft’.[32] The US Naval Handbook (2007) provides that:
    [D]ue to the changing threat environment in which the red cross symbol is not recognized by various hostile groups and actors as indicating protected status, the United States views the manning of hospital ships with defensive weapons systems, such as anti-missile defense systems or crew-served weapons to defend against small boat threats as prudent AT/TP [Anti-Terrorism/Force Protection] measures, analogous to arming crew members with small arms, and consistent with the humanitarian purpose of hospital ships and duty to safeguard the wounded and sick.[33]
    2378  Indeed, if there are reasonable grounds for suspicion that hospital ships will be attacked by Parties who intentionally disregard their protection under international humanitarian law, it would be difficult to deny them the right of defending themselves against such illegal attacks.[34] On the other hand, it is unlikely that the Parties to the conflict will continue to respect and protect hospital ships, if they are ‘armed to an extent that they could inflict damage to a warship’, because that could be considered an ‘act harmful to the enemy’, as defined above.[35] During the 1990 Iraq-Kuwait conflict, the United Kingdom arrived at the conclusion that it was impossible to effectively protect hospital ships against illegal attacks and at the same time preserve their protected status under the Convention.[36] Indeed, it is highly difficult, if not impossible, to clearly distinguish between the defensive and (potentially) offensive nature of arms other than light/portable individual weapons. Therefore, it has not been publicly discussed nor agreed upon among States whether hospital ships may be equipped with other than light weapons, in particular with other than ‘purely deflective means of defence, such as chaff and flares’.[37] Certainly, the existence of heavy weapons (as distinguished from those permissible under Article 35) on board hospital ships and in sickbays will be legitimately considered an ‘act harmful to the enemy’.
    2379  Lastly, the act in question must be committed ‘outside their humanitarian duties’. That said, it is possible for a humanitarian duty to involve some harm to the enemy, or for it to be wrongly interpreted as such.[38] Still, the wording is clear. For an act to qualify as ‘harmful to the enemy’, it must be clearly distinguished from the performance of humanitarian tasks, even if such performance has an impeding effect on ongoing naval operations. Such impeding effect may arise where a hospital ship is involved in carrying out some of the ‘measures’ referred to under Article 18. This is without prejudice to Article 30(3), which stipulates that hospital ships shall ‘in no wise hamper the movements of the combatants’.
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    3. Warning and time limit
    2380  In accordance with the second sentence of paragraph 1, the protection of hospital ships and sickbays that are used to commit acts harmful to the enemy does not cease immediately, but only after a warning has remained unheeded. In ‘all appropriate cases’ the warning must name a ‘reasonable time limit’. These procedural safeguards, which have no equivalent in the 1899 Hague Convention (III) or the 1907 Hague Convention (X), aim at ‘tempering the possible consequences of too strict an application of the above principle. Safeguards had, in fact, to be provided in order to ensure the humane treatment of the wounded themselves, who could not be held responsible for any unlawful acts committed.’[39]
    2381  A ‘warning’ is a ‘statement’ or ‘advance notice’ informing someone ‘of a possible danger, problem, etc.’.[40] The aggrieved Party to the conflict must inform the hospital ship or sickbay that the latter has committed, or is committing, an act harmful to it, or that there are reasonable grounds for suspicion that such acts have been or are being committed, and that it is in danger of being attacked or subjected to an enforcement measure if it does not put an end to the activity in question. The warning must be transmitted in a manner such that it can be expected to be received and understood. Hospital ships and sickbays lose their protection only if the warning is disregarded and they continue to be used for acts harmful to the enemy.[41]
    2382  The time limit is not specified; it must be ‘reasonable’. This means that it must be long enough to give the hospital ship or sickbay the opportunity to terminate the offending act or provide evidence to refute the accusation.[42] The purpose of a time limit is to delay any attack on a hospital ship, for seizure would not involve a comparable risk for the patients on board. The obligation to combine the warning with a time limit is, however, not absolute; a time limit must be given only ‘in all appropriate cases’. This means that it is circumstantial insofar as there may be situations in which setting a time limit would either be meaningless or imply too great a risk for the intercepting warship or for other vessels. The latter is certainly the case if a warship intends to search a hospital ship in accordance with Article 31(1), and if the hospital ship offers resistance by firing at the warship. Conversely, a time limit will be meaningless if a hospital ship were to attack a warship and the warship had no other option but to respond immediately to defend itself and its crew.
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    4. Consequences
    2383  The first sentence of paragraph 1 merely states that, if hospital ships and sickbays are used to commit an act harmful to the enemy, their protection ceases, without specifying the measures that the aggrieved Party to the conflict is allowed to take if the warning remains unheeded.
    2384  It follows from the context of the first paragraph that if, after warning, a hospital ship is no longer used to commit an act harmful to the enemy, it may not be attacked. It will, however, be liable to capture for the fact that it was not employed in its innocent role. The context of Article 30 reveals that an ‘act harmful to the enemy’ depriving hospital ships and sickbays of their protection is to be considered the most serious breach of the conditions of their employment and may render them a military objective. In such a case, when a warning has remained unheeded and subject to the applicable rules on the conduct of hostilities at sea, they may be liable to attack. Less serious acts, such as failure to provide assistance impartially as required by Article 30(1), can also deprive hospital ships and sickbays of their protection without rendering them lawful targets, because they do not qualify as ‘acts harmful to the enemy’ as defined above. Hence, paragraph 1 is without prejudice to the capture of hospital ships or to other measures to enforce compliance with the conditions of their employment (such as warnings, including, if necessary, warning shots not expected to hit the ship); its focus is on their loss of protection against attacks. If paragraph 1 were understood as providing the ‘only case’ in which hospital ships and sickbays lose their protection, this would prevent the Parties to the conflict from taking the necessary measures to enforce compliance, including capture, although the vessels were in clear violation of the conditions of their employment. Moreover, taken to an extreme, such an understanding would mean that coastal rescue craft could neither be captured nor attacked, even if they were used to commit acts harmful to the enemy, for the sole reason that the Convention is silent on this point.
    2385  This finding is supported by the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Under paragraph 48 of the Manual, hospital ships
    are exempt from attack only if they: (a) are innocently employed in their normal role; (b) submit to identification and inspection when required; and (c) do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required. [Emphasis added.]
    2386  If a warning has remained unheeded and if the hospital ship ‘persists in breaking a condition of its exemption, it renders itself liable to capture or other necessary measures to enforce compliance’.[43] However, under paragraph 51, hospital ships may be attacked only as a last resort if, inter alia, ‘the circumstances of non-compliance are sufficiently grave that the hospital ship has become, or may be reasonably assumed to be, a military objective’. This means that the hospital ship in question must, by use, have effectively contributed to the enemy’s military action, i.e. it must have committed an act harmful to the enemy as distinguished from other acts of non-compliance with the conditions of its employment, provided its destruction offers a definite military advantage in the circumstances ruling at the time.
    2387  However, committing an act harmful to the enemy and disregarding the warning are not sufficient grounds for an attack against a hospital ship: in case of any doubt as to the interpretation of the present provision, one must bear in mind that it is based on humanitarian considerations. In accordance with the San Remo Manual, attacks on hospital ships will therefore be lawful only as a last resort and only if:
    (a) diversion or capture is not feasible;
    (b) no other method is available for exercising military control;
    (c) the circumstances of non-compliance are sufficiently grave that the hospital ship has become, or may be reasonably assumed to be, a military objective; and
    (d) the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.[44]
    2388  In particular, the last of these conditions will regularly oblige the aggrieved Party to the conflict to refrain from attack, unless it is in a position to take appropriate measures for the safety of the protected persons on board before taking any extreme action. Hence, even if an act harmful to the enemy that would render a hospital ship a military objective has been committed, the only remedy, practically speaking, available to the aggrieved Party to the conflict would most likely be capture or another appropriate measure of enforcing compliance owing to the obligations to respect and protect the protected persons on board.
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    D. Paragraph 2: No possession or use of a secret code
    2389  Paragraph 2 regulates a special subcategory of an ‘act harmful to the enemy’ that has been considered to be of great practical significance. The fact that the use of any secret code is prohibited affords a guarantee to the belligerents that hospital ships will not make improper use of their transmitting apparatus or any other means of communication. Hospital ships may only communicate in clear, or at least in a code which is universally known, and rightly so, for the spirit of the Geneva Conventions requires that there should be nothing secret in their behaviour vis-à-vis the enemy. Despite the seemingly clear wording it is, however, doubtful whether the prohibition is indeed absolute. Moreover, subsequent practice seems to indicate that the rule has lost much of the practical relevance it had in 1949.
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    1. Scope and object of the prohibition
    2390  Paragraph 2 applies only to hospital ships, not to coastal rescue craft. Although the records of the 1949 Diplomatic Conference are silent as to why such craft were not included in either paragraph of Article 34, there was no need to apply the prohibition on the possession and use of a secret code to them, because in 1949 they were, if at all, equipped only with small communication devices and their crew would not have been in a position to encode and decode messages, which was a time-consuming and challenging process.
    2391  The noun ‘wireless’ used to be short for ‘wireless telegraphy’. Later it was extended to mean ‘broadcasting or telegraphy using radio signals’.[45] Certainly, in 1949, the modern understanding of the term ‘wireless’ as referring to ‘wireless Internet and other digital communication, which can in fact be by infrared or microwaves as well as radio waves’,[46] could not have been envisaged. Still, the fact that, in 1949, communications technology was less advanced than it is today is no obstacle to a broader interpretation of the term. This is especially so since paragraph 2 is not limited to ‘wireless’ but is applicable to all ‘other means of communication’. Accordingly, the prohibition against possessing or using a secret code applies to telegraphy, radio, satellite communications and visual and acoustic signals, as well as to computers, cell phones and other devices that are connected to a classified or open network.
    2392  Despite some suspicion that existed vis-à-vis means of communication,[47] their mere presence on board hospital ships, and their use, is not a sufficient reason for withdrawing protection. This is made abundantly clear in Article 8, paragraph 2, of the 1907 Hague Convention (X) and in Article 35(2) of the Second Convention, under which the ‘presence on board of apparatus exclusively intended to facilitate … communication’ shall ‘not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them’.
    2393  At first glance, the prohibition of possession or use of a secret code set out in the authentic English text of Article 34(2) seems to be both clear and absolute, in that it could be understood as applying to any use of the means of communication, whether for transmitting or receiving messages. The equally authentic French version of Article 34(2), however, reads as follows:[48] ‘En particulier, les navires-hôpitaux ne pourront posséder ni utiliser de code secret pour leurs émissions par T.S.F. ou par tout autre moyen de communication.’ ‘T.S.F.’ stands for ‘transmission sans fil’, i.e. ‘wireless’, and ‘émissions’ for ‘transmission’ or ‘broadcast’. Thus, this French version is limited to a prohibition on possessing or using a secret code for transmitting messages via the wireless or any other means of communication. The records of the 1949 Diplomatic Conference give no indication as to why the two authentic texts are not identical. Resolutions 6 and 7, which were adopted by the Conference, merely reveal that the issue of means of communication and their use had not been entirely resolved.[49]
    2394  In this context, it is important to note that at the time of the adoption of the Second Geneva Convention, there were no wireless (or other means of communication) that could be used for both transmitting and receiving messages. Throughout the first half of the 20th century, vessels, if equipped with radio at all, had separate transmitters and receivers. Even after the Second World War, most ships had separate compartments for the apparatuses transmitting and receiving messages.[50] Hence, a distinction between those apparatuses certainly reflected the practice of States, as well as the state of the technology at the time the Second Convention was adopted. Moreover, it should not be forgotten that limiting the prohibition in paragraph 2 to the apparatus transmitting messages reflects the interests of States and facilitates the performance of humanitarian functions. Hospital ships are often comparatively slow.[51] If they are to be in the sea area where their services are needed, they must be ordered to proceed to that area well in advance. If such an order were transmitted to the hospital ship in clear, the enemy could intercept that message, would know where a military operation is planned and could prepare its forces accordingly. In addition, a warship wishing to communicate with a hospital ship would run the risk of revealing its position to the enemy if it had to transmit its message in clear. Therefore, the equally authentic French text, which merely prohibits the possession and use of a secret code for the wireless and other means of communication for the purpose of transmitting messages – as distinguished from receiving them – seems to better capture the drafters’ true intention.
    2395  Accordingly, the prohibition aims at preventing hospital ships from using any means of communication to transmit, in a secret code, militarily relevant information and intelligence data to one Party to the conflict.[52] As the wording – ‘in particular’ – and the context of paragraph 1 indicate, any use of a secret code, and even the mere possession of such a code, for the purpose of transmitting messages and data constitutes an ‘act harmful to the enemy’, which, in accordance with paragraph 1, and subject to the warning and time limit, deprives a hospital ship of its protection. However, the mere fact that information has been digitalized is no sufficient reason to assume the use of a ‘secret code’. In the same vein, the protection of communication systems against unauthorized intrusion will, as such, not constitute the use of a ‘secret code’.
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    2. Practice since 1949
    2396  According to an interpretation of paragraph 2 that appropriately takes into consideration the equally authentic English and French versions of the Convention, paragraph 2 would not be violated by the possession or use of a secret code solely for receiving messages. Still, States have been hesitant to rely on that interpretation.[53]
    2397  It has been noted that Article 34(2) was adopted ‘before developments in modern communications technology made encryption more common’.[54] These technological developments have raised the question to what extent the legal rule enshrined in Article 34(2) remains viable and valid.[55]
    2398  During the Falkland/Malvinas Islands conflict (1982), all hospital ships used by the Parties to the conflict communicated in clear. It has been explained that
    [as] the use of secret codes is banned by Article 34 of the Second Geneva Convention, the radio communications exchanged by the hospital ships with their land bases were also in clear. It was not possible for them to communicate directly with the warships, since any communication in clear could reveal the warship’s position to the adversary. Consequently, the hospital ships were not informed about the movements of the fleet or about the development of military operations on land, and thus had to wait in readiness in a zone known as the ‘Red Cross Box’.[56]
    2399  The practice of the United States has been to ‘follow all provisions of the Geneva Conventions, including the prohibition on use of secure and encrypted communications aboard hospital ships’.[57] At the same time it is held that the
    technological requirements of modern communications have clearly rendered this provision of [the Second Convention] outdated … . Most modern communications and navigation systems, including satellite systems, use some form of encryption even at the most basic level. While avoiding all use of encrypted equipment may be problematic, the prohibition contained in the Geneva Convention requires extreme vigilance in ensuring that hospital ships do not lose their protected status.[58]
    2400  The 2007 US Naval Handbook states that:
    [S]ubsequent technological advances in encryption and satellite navigation, while recognized as problematic, have not been specifically addressed by treaty. As a practical matter, modern navigational technology requires that the traditional rule prohibiting ‘secret codes’ be understood to not include modern encryption communications systems. However, such systems must not be used for military purposes in any way harmful to a potential adversary.[59]
    These concerns have also been expressed in other military manuals.[60]
    2401  More recently, the 2016 US Law of War Manual states:
    In light of the requirement for encryption in modern communications systems (e.g., global positioning systems) and the goal of ensuring that hospital ships can effectively fulfil their humanitarian mission, the United States has employed hospital ships with the capability to conduct encrypted communications.[61]
    2402  The use of modern satellite communications technology that is based on some form of encryption has not been challenged by other High Contracting Parties as being in violation of Article 34(2). Hence, one might argue that the prohibition on the possession or use of a secret code for the transmission of messages and data has lost its relevance by the subsequent practice of the States party to the Second Convention.[62] Interestingly, a ‘very narrow majority’ of the experts drafting the San Remo Manual took the view that ‘present law still prohibits the use of such equipment and that this law has not fallen into desuetude’.[63] Hence, according to the San Remo Manual, hospital ships are not explicitly allowed to use cryptographic equipment. The respective paragraph merely contains a recommendation de lege ferenda:
    In order to fulfil most effectively their humanitarian mission, hospital ships should be permitted to use cryptographic equipment. The equipment shall not be used in any circumstances to transmit intelligence data nor in any other way to acquire any military advantage.[64]
    2403  There is, therefore, a certain trend in international practice whereby the use of satellite communications does not constitute a violation of paragraph 2, even if messages and data are transmitted using encryption. Moreover, where personal health data is concerned, in accordance with international privacy and data-protection standards (where such standards exist and apply) and, increasingly, with domestic law, it must be afforded a reasonable level of security[65] or a level of security that is commensurate with the sensitivity of such data and the risks involved in their processing.[66] This can be deemed to involve encrypted communication. This requirement is not, however, absolute, and its application must take into account all relevant circumstances, including the existing risk, possible consequences for data subjects, the sensitive nature of the data, the state of the art, the context in which the data are processed and, where appropriate, the obligations contained in applicable national or international law. Accordingly, data-protection considerations alone cannot constitute an argument for departure from the obligation not to encrypt communications in this context. At the same time, there has never been doubt about the continuing validity of the prohibition against using means of communication, irrespective of the technology involved, for military purposes and ‘acts harmful to the enemy’.[67]
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    Select bibliography
    Colombos, C. John, The International Law of the Sea, 6th revised edition, Longmans, London, 1967.
    Garner, James W., Prize Law during the World War: A Study of the Jurisprudence of the Prize Courts, 1914–1924, Macmillan, New York, 1927, pp. 244–248.
    Grunawalt, Richard J., ‘Hospital Ships in the War on Terror: Sanctuaries or Targets?’, Naval War College Review, Vol. 58, No. 1, Winter 2005, pp. 89–119.

    1 - See the cases reported by Colombos and Garner.
    2 - It was, however, ‘perfectly understood that these vessels are not to serve any other purpose, that they cannot under any pretext be directly or indirectly employed to further any military operation’; Proceedings of the Hague Peace Conference of 1899, p. 36.
    3 - Article 7 of the 1906 Geneva Convention provided that: ‘The protection due to sanitary formations and establishments ceases if they are used to commit acts injurious to the enemy.’
    4 - See Proceedings of the Hague Peace Conference of 1907, Vol. I, p. 74. A similar rule appears in the first sentence of Article 44 of the 1913 Oxford Manual of Naval War.
    5 - Ibid.
    6 - Ibid. Vol. III, p. 300. For further details of the arguments exchanged, see the commentary on Article 35, para. 4.
    7 - For the case of the German hospital ship Ophelia, which was captured and condemned by the British Prize Court because it was also used as a signalling ship for military purposes, see Colombos, p. 591, and Garner, p. 244.
    8 - Naval Expert Report of 1937, p. 33.
    9 - Ibid., fn. 2.
    10 - Report of the Preliminary Conference of National Societies of 1946, p. 60.
    11 - Report of the Conference of Government Experts of 1947, pp. 91–92.
    12 - Draft Conventions adopted by the 1948 Stockholm Conference, pp. 40–41. Accordingly, paragraph 1 was worded as follows: ‘The protection to which hospital ships and sick-bays are entitled cannot lapse unless they are used to commit acts harmful to the enemy, and after due warning, naming a reasonable time limit, which warning is unheeded.’
    13 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 76.
    14 - Ibid.
    15 - Ibid. p. 148. The ‘Article 16’ referred to is now Article 21 of the First Convention.
    16 - Ibid. p. 203.
    17 - The Drafting Committee had rearranged the first paragraph accordingly. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 168.
    18 - Ibid. Article 46, p. 230.
    19 - See the commentary on Article 28, section C.1.a.
    20 - See the commentary on Article 27, section B. For the lengthy discussions on the requirement of a minimum tonnage or size and its relevance to the protection of coastal rescue craft, see the commentaries on Article 22, section C.1.a, and Article 26, section C.2.a.
    21 - See the commentaries on Article 27, section C.3.c, and Article 30, section H; see also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 52.
    22 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 47 and 48. With regard to further safeguards, see ibid. para. 52. See also Pictet, who holds that, ‘[i]f rescue craft commit acts harmful to the enemy, then they will certainly be deprived of protection, in accordance with the general principles of the Convention and with Article 30 in particular’; Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 190.
    23 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 52. For the capture of coastal rescue craft, see ibid. para. 137, and the commentary on Article 27 of this Convention, section C.3.c.
    24 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 651.
    25 - Also quoted in Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 191.
    26 - Customary International Humanitarian Law (2005), Rule 8.
    27 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 60 and 67. See also United States, Law of War Manual, 2016, para. 7.12.2.2: ‘For example, [hospital ships and coastal rescue craft] may not be used to relay military orders, transport able-bodied combatants or military equipment, or engage in reconnaissance. Such acts constitute acts harmful to the enemy.’
    28 - Gregory P. Noone et al., ‘Prisoners of War in the 21st Century: Issues in Modern Warfare’, Naval Law Review, Vol. 50, 2004, pp. 1–56, at 38–41.
    29 - Ibid. See also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 180, and the commentary on Article 30, section G.
    30 - Ibid.
    31 - Accordingly, the arming of a hospital ship must be distinguished from the arming of the personnel and crew. See the commentary on Article 35, section D.
    32 - Michael Sirak, ‘U.S. Navy Seeks to Revise Laws of War on Hospital Ships’, Jane’s Defence Weekly, 19 August 2003.
    33 - United States, Naval Handbook, 2007, para. 8.6.3.
    34 - See Wolff Heintschel von Heinegg, ‘Current Legal Issues in Maritime Operations: Maritime Interception Operations in the Global War on Terrorism, Exclusion Zones, Hospital Ships and Maritime Neutrality’, in Richard B. Jaques (ed.), Issues in International Law and Military Operations, International Law Studies, U.S. Naval War College, Vol. 80, 2006, pp. 207–233, at 222. See also Grunawalt, p. 109.
    35 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 60.f.
    36 - Hence, the RFA Argus, which was equipped with light air defence systems, was no longer deployed as a hospital ship but as a ‘casualty receiving ship’ that also transported troops. The United Kingdom did not claim protected status for it. See David Foxwell and Rick Jolly, ‘The RFA Argus: A Gas-Tight, Floating Field Hospital’, International Defense Review, Vol. 24, No. 2, 1992, pp. 116–117, and Antoine Bouvier, ‘Fighting Hospital Ships’, International Defense Review, Vol. 25, No. 3, 1992, p. 246.
    37 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 170. See also Wolff Heintschel von Heinegg, ‘The Development of the Law of Naval Warfare from the Nineteenth to the Twenty-First Century – Some Select Issues’, Yearbook of International Humanitarian Law, Vol. 17, 2014, pp. 69–93, at 78.
    38 - For examples in land warfare, see the commentary on Article 21 of the First Convention, para. 1844. Relatedly, see also Article 22 of the First Convention.
    39 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 191. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 49.1.
    40 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1629.
    41 - However, see also United States, Law of War Manual, 2016, para. 7.12.6.1: ‘The obligation to refrain from use of force against a medical vessel … acting in violation of its mission and protected status without due warning does not prohibit the exercise of the right of self-defense. There may be cases in which, in the exercise of the right of self-defense, a warning is not “due” or a reasonable time-limit is not appropriate. For example, forces receiving heavy fire may exercise their right of self-defense and return fire. Such use of force in self-defense must also be proportionate.’
    42 - See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 49, which, inter alia, provides that ‘only after due warning has been given naming in all appropriate cases a reasonable time limit to discharge itself of the cause endangering its exemption’.
    43 - Ibid. para. 50.
    44 - Ibid. para. 51 (emphasis added).
    45 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1656.
    46 - Ibid.
    47 - See Colombos and Garner.
    48 - On the topic of divergences between the equally authentic English and French versions of the Second Convention, see the commentary on Article 54, section B.2.
    49 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, p. 362, Resolutions 6 and 7. Despite several attempts made to implement these resolutions, no actual outcome was ever adopted; see Report of the Conference of Government Experts of 1972, Vol. 1, p. 59 (Annex).
    50 - Response by Professor Angus Ross, U.S. Naval War College, to a question posed by the author of the present commentary.
    51 - For example, the maximum speed (which is to be distinguished from the average speed) of the Chinese hospital ship Peace Ark is 20 knots. A modern frigate can attain a speed of more than 30 knots.
    52 - See United States, Law of War Manual, 2016, para. 7.12.2.7: ‘The lack of secret codes for communication was intended to afford belligerents a guarantee that hospital ships were not improperly participating in hostilities.’
    53 - See also Wolff Heintschel von Heinegg, ‘Maritime Warfare’, in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, 2014, pp. 145–181, at 157–159.
    54 - United States, Law of War Manual, 2016, para. 7.12.2.7.
    55 - Ibid: ‘Substantial practical difficulties have arisen in construing this rule in a way that would prohibit any use of encrypted communications by hospital ships.’ (Underlining in original.) See also United Kingdom, Manual on the Law of Armed Conflict, 2004, para. 13.125: ‘This general wording [of Article 34(2)] has caused difficulties. British forces in the [Falkland/Malvinas Islands conflict] found that having to give orders to their hospital ships ‘in the clear’ risked giving away their own positions or likely movements.’
    56 - Philippe Eberlin, ‘Identification of hospital ships and ships protected by the Geneva Conventions of 2 August 1949,’ International Review of the Red Cross, Vol. 22, No. 231, November–December 1982, pp. 315–328, at 324. Eberlin continues: To maintain long distance contact with their bases, the … hospital ships used radio telex via the Inmarsat satellite system. Telex messages were likewise exchanged in clear, which meant that the hospital ships could not be informed in detail about the medical evacuations in which they were required to participate. … The Naval Command, from which the hospital ship received its orders, could not use coded radio communications to inform it directly, and thus rapidly, about the military situation and dangers in the area where it was operating, nor about the numbers of casualties to be evacuated, the wounds sustained, emergency cases, etc.
    57 - See United States, Manual on the Medical Company, 2002, para. 4.4.2.
    58 - Ibid.
    59 - United States, Naval Handbook, 2007, para. 8.6.3. See also Michael Sirak, ‘U.S. Navy Seeks to Revise Laws of War on Hospital Ships’, Jane’s Defence Weekly, 19 August 2003.
    60 - See Australia, Manual of the Law of Armed Conflict, 2006, para. 6.72 (‘In order to fulfil their humanitarian mission, hospital ships should be permitted to use cryptographic equipment provided such equipment is not used to transmit intelligence data nor in any other way to acquire military advantage’), and United Kingdom, Manual of the Law of Armed Conflict, 2004, para 13.125 (‘In order to fulfil most effectively their humanitarian mission, hospital ships should be permitted to use cryptographic equipment. The equipment shall not be used in any circumstances to transmit intelligence data nor in any other way to acquire any military advantage.’)
    61 - United States, Law of War Manual, 2016, para. 7.12.2.7.
    62 - See Grunawalt, pp. 105–106.
    63 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 171.5.
    64 - Ibid. para. 171. See also the opening words of para. 159, which states that para. 171 was considered to depart from the provisions of the Second Convention.
    65 - See OECD Privacy Framework, 2013, para. 11, Security Safeguards Principle, https://www.oecd.org/internet/ieconomy/privacy-guidelines.htm.
    66 - See 31st International Conference of Data Protection and Privacy Commissioners, Madrid, 2009, Resolution concerning the strengthening of the international cooperation in the field of data and privacy protection, https://icdppc.org/document-archive/adopted-resolutions/, and Council of Europe, Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Convention No. 108, Strasbourg, 28 January 1981, Articles 6–7.
    67 - United States, Law of War Manual, 2016, para. 7.12.2.7: ‘Hospital ships may not use encrypted communications for military purposes (e.g., transmitting intelligence data) or in any way that is harmful to an adversary.’ See also Grunawalt, p. 109, who takes the view that: [T]he likelihood that a hospital ship would be employed to collect and promulgate military intelligence in this age of satellite sensors, over-the-horizon radar, and fixed and mobile long-range hydrophones is extremely remote; it strains the imagination to conjure up a scenario where it would have any utility whatsoever.