Treaties, States Parties and Commentaries
  • Print page
Commentary of 2017 
Article 17 : Wounded, sick and shipwrecked landed in a neutral port
Text of the provision*
(1) Wounded, sick or shipwrecked persons who are landed in neutral ports with the consent of the local authorities, shall, failing arrangements to the contrary between the neutral and the belligerent Powers, be so guarded by the neutral Power, where so required by international law, that the said persons cannot again take part in operations of war.
(2) The costs of hospital accommodation and internment shall be borne by the Power on whom the wounded, sick or shipwrecked persons depend.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1586  This provision is one of three articles in the Second Convention that refer to obligations applicable to neutral Powers on the basis of the law of neutrality, which is the body of law that exclusively regulates these obligations’ substantive contours.[1]
1587  Following an engagement during an international armed conflict at sea, it may occur that the wounded, sick and shipwrecked are rescued by belligerent or neutral vessels and that these persons are landed in a neutral port with the consent of the local authorities. For such a situation, the Second Convention provides two sets of obligations applicable to the neutral Power.
1588  First, on the basis of Article 5, the neutral Power must apply the Second Convention by analogy to these persons in its territory. In fact, they may have sought permission to enter the neutral Power’s territory precisely to obtain medical care.
1589  Second, as stated in Article 17, the neutral Power must, ‘where so required by international law’, guard these wounded, sick or shipwrecked persons so that they ‘cannot again take part in operations of war’. This rule is in line with the prescriptions of the law of neutrality that apply when members of the armed forces come under the jurisdiction of a neutral Power.[2] The San Remo Manual on International Law Applicable to Armed Conflicts at Sea contains a similar rule, whereby ‘[p]ersons having fallen into the power of a neutral State are to be treated in accordance with Hague Conventions V and XIII of 1907 and the Second Geneva Convention of 1949’.[3]
Back to top
B. Historical background
1590  This provision dates back to the 1899 Hague Convention (III) and was repeated almost verbatim in the 1907 Hague Convention (X).[4]
1591  The current provision is almost identical to the version of 1907. There is only one difference, resulting from a modification agreed upon during the Diplomatic Conference of Geneva of 1949, which is the addition of the words ‘where so required by international law’ as a qualifier of the substantive obligation applicable to the neutral Power.[5]
Back to top
C. Paragraph 1: Guarding of the wounded, sick or shipwrecked landed in neutral ports
1. Situations to which Article 17 applies
1592  Three conditions must be fulfilled for Article 17 to apply in the context of an international armed conflict which takes place in part, or entirely, at sea.[6]
1593  First, there must be ‘wounded, sick or shipwrecked persons’. These terms refer to the persons covered by Article 12(1), i.e. members of the armed forces and of groups associated therewith who are covered by Article 13 and who are wounded, sick or shipwrecked at sea.
1594  Second, and most importantly, the wounded, sick or shipwrecked need to be ‘landed in neutral ports’, i.e. Article 17 applies only from the moment the wounded, sick or shipwrecked leave the vessel and disembark in a neutral Power’s port. Once in the territorial sea of a neutral State, where a Party to an armed conflict is prohibited from taking hostile actions, these wounded, sick or shipwrecked persons are exempt from capture by the enemy.[7]
1595  The circumstances which led the vessel to land them in a neutral port are immaterial. That said, as long as these persons remain on board, even in a port, Article 17 does not apply.[8]
1596  Article 17 does not apply to wounded, sick or shipwrecked persons landed in a neutral airport. However, for persons who disembark there from a medical aircraft, Article 40(3) contains the same substantive rule. The same rule applies with regard to the wounded, sick or shipwrecked taken on board a neutral military aircraft or neutral warship pursuant to Article 15. In all instances, see also Article 11(1) of the 1907 Hague Convention (V), which may have the same result.
1597  Article 17 applies regardless of the category of vessel on which the wounded, sick or shipwrecked arrive in the neutral port, i.e. it is immaterial whether they disembark from a warship, hospital ship, auxiliary vessel, coastal rescue craft, merchant vessel or other craft.[9] Similarly, Article 17 applies regardless of the belligerent or neutral character of that vessel.[10] The 1960 Commentary considered that Article 17 ‘was intended to cover only wounded persons landed in neutral territory by a belligerent warship’.[11] On the basis of this reading – which was partially linked to the possibility for the enemy to exercise, but only vis-à-vis certain categories of vessels, the right provided for in Article 14, without having actually exercised it[12] – the Commentary explored different approaches for the wounded, sick or shipwrecked brought to a neutral port on board hospital ships and merchant vessels.[13] However, Article 17 remains silent on the matter, and the applicability of Article 17 should be considered separately from the substantive contours of the ‘requirements of international law’. The status of the vessel does indeed affect these requirements in terms of whether wounded, sick or shipwrecked persons need to be ‘so guarded by the neutral Power … that the said persons cannot again take part in operations of war’.[14]
1598  Third, the wounded, sick or shipwrecked need to have been landed in the neutral port with the ‘consent’ of the local authorities. This requirement flows from a State’s sovereign right to decide whom it will allow access to its territory.[15] In view of the humanitarian interest at stake, the fact that a neutral Power gives its consent in this context cannot be considered a violation of its obligations under the law of neutrality.[16] For medical aircraft of the Parties to the conflict, Article 40 ensures that, under certain conditions, they have a right to ‘fly over the territory of neutral Powers, land thereon in case of necessity, or use it as a port of call’. No similar right exists for vessels carrying wounded, sick or shipwrecked and wishing to land them in a neutral port. Provided it does so on a non-discriminatory basis, a neutral Power is entitled to close its ports (and roadsteads) to belligerent vessels.[17] Irrespective of whether or not a neutral Power has resorted to such a measure, (some of the) wounded, sick or shipwrecked on board a vessel may be in urgent need of assistance or care. It is to be hoped that in such instances the neutral Power will allow those in need of medical care to disembark in one of its ports so that they can receive such care.
1599  No explicit rule exists in international law obliging a belligerent vessel carrying wounded, sick or shipwrecked to land them in a neutral port. However, Parties to an armed conflict must respect and protect those persons on the basis of Article 12. Depending on the circumstances, a belligerent vessel may feel compelled to land them in a neutral port in order to comply with this obligation. This may be the case, for example, if a warship with wounded, sick or shipwrecked on board has insufficient medical facilities on board and/or the travel time to a home or allied port would put the wounded, sick or shipwrecked at risk.[18] Conversely, it is clear that a vessel carrying wounded, sick or shipwrecked persons is entitled to ask the neutral Power if it can disembark them. The entitlement of a Party to the armed conflict to ask a neutral Power whether it can land wounded, sick or shipwrecked members of its own forces is self-evident; the entitlement to do so with regard to wounded, sick or shipwrecked members of enemy forces is explicitly stated in Article 16.
1600  Outside the realm of international humanitarian law, mention must be made of amendments to the SOLAS and SAR Conventions adopted in 2004 which require States Parties to ‘co-operate and co-ordinate’ to ensure that shipmasters who have taken on board persons in distress at sea ‘are released from their obligations with minimum further deviation from the ships’ intended voyage’, and that the State responsible under the SAR Convention for the relevant search and rescue region takes primary responsibility for arranging that these persons ‘are disembarked from the assisting ship and delivered to a place of safety … as soon as reasonably practicable’.[19] These rules, where applicable, may have an impact on the neutral Power’s discretion to decide whether to grant its consent.
1601  Where disembarkation is allowed, several international instruments – including the Convention on Facilitation of International Maritime Traffic and the International Maritime Organization’s Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea – seek to expedite the process by minimizing the required formalities.[20]
1602  Article 17 requires the consent of the ‘local authorities’. The term ‘local authorities’ needs to be interpreted broadly to include any authority of the neutral Power entitled to make the decision to accept wounded, sick or shipwrecked persons into the neutral port. The enemy of the belligerent vessel in question is not involved in, and may not oppose, this decision.[21] In practice, it will be up to each State to decide exactly which body qualifies for this purpose. This may, but need not, be the port authorities. Since they act as an organ of the State when granting consent in the sense of Article 17, the local authorities need to be aware at all times that their actions must comply with international law applicable to the State of which they form part.
1603  The ‘consent of the local authorities’ may, but need not, be obtained prior to arrival in the neutral port, but in any case it must be given prior to the disembarkation of the wounded, sick and shipwrecked. The moment the port authorities agree – for example, in a distress situation – that these persons can enter the port and be disembarked, it constitutes consent. The fact that consent is required simply implies that an agreement – oral or written – must be reached between the port authorities of the neutral Power and the commanders or masters of the vessels, or their superiors. While Article 17 does not address this explicitly, it is implicit in the scenario foreseen by this provision that the consent to disembark is also required from the captain or commander of the vessel transporting the wounded, sick or shipwrecked.[22]
1604  There is no particular reason why the term ‘belligerent Powers’ was maintained and was not replaced by ‘Party to the conflict’ as was done throughout the rest of the Convention;[23] the drafters simply kept the 1907 text, which spoke of ‘the belligerent States’.
Back to top
2. ‘where so required by international law’
a. The requirements of international law
1605  Article 17 refers to the requirements of international law that are to be found outside the Second Convention. Thus, the Second Convention itself does not regulate when the neutral Power needs to guard the wounded, sick and shipwrecked so ‘that the said persons cannot again take part in operations of war’. During the 1949 Diplomatic Conference, indeed, the drafters did not wish to deal with the substance nor the interpretation of the law of neutrality, and preferred to leave the neutral Power’s freedom of interpretation intact.[24] On this point, section C.2. of the commentary on Article 15 applies mutatis mutandis.
1606  The interpretation of the ‘requirements of international law’, when it comes to knowing when persons covered by Article 17 need to be ‘so guarded by the neutral Power … that the said persons cannot again take part in operations of war’, were much debated both before and during the 1949 Diplomatic Conference. In particular, the question has arisen whether the status of the vessel which landed the wounded, sick and shipwrecked in a neutral port, has an impact on these requirements. The precise answer to this question remains unclear.
1607  Logically, the requirements under international law on this point should be the same, regardless of the status of the vessel on which they arrived. This is an issue of consistency and of avoiding differences in treatment based solely on the status of the vessel which brought them to the neutral port. The opposite view would lead to unjustifiable and discriminatory differences in treatment between persons who share the same legal status, i.e. wounded, sick and shipwrecked members of the armed forces of a Party to the conflict. Support for this view can be found in the drafting history of Article 17. Initially, in the Draft Conventions adopted by the 1948 Stockholm Conference, this provision was declared applicable to ‘[w]ounded, sick or shipwrecked persons who are landed by the warships, hospital ships or merchant vessels of belligerents in neutral ports’.[25] During the 1949 Diplomatic Conference, an amendment was submitted to omit the words ‘by the warships, hospital ships or merchant vessels of belligerents’ based on the consideration that ‘[n]o distinction should be made between the categories of ships which disembarked wounded, sick or shipwrecked persons in a neutral port’. [26] It was also stated during the Conference that ‘[i]f that view was accepted, shipwrecked persons from the same ship, but picked up and disembarked in a neutral country by different categories of vessels, would not be accorded the same treatment. That would be inadmissible’.[27]
1608  Nevertheless, despite the appeal of this logic, traditionally, the ‘requirements of international law’ have been understood to be different depending on the category of vessel on board which the wounded, sick or shipwrecked were brought into a neutral port. The rationale invoked to justify this position can be traced back to what is nowadays Article 14, i.e. the right of belligerent warships to demand, under certain conditions, that ‘the wounded, sick or shipwrecked on board military hospital ships, and hospital ships belonging to relief societies or to private individuals, as well as merchant vessels, yachts and other craft shall be surrendered’.[28] When wounded, sick or shipwrecked persons were brought to a neutral port on board such vessels,[29] the assumption was that the enemy could have, but did not, request their surrender while they were on board that vessel.[30] As a result, once in a neutral port, they had to be set free. By contrast, for persons brought to a neutral port by other vessels, in particular belligerent warships, it was held that Article 17 applied.[31]
1609  Already before 1949, yet continuing until today, the specific requirements of international law were subject to different interpretations, particularly in the literature. The only point on which, historically, there has been consensus, is that wounded, sick or shipwrecked persons landed in a neutral port on a belligerent warship must be ‘guarded’ in the sense of Article 17.[32] Agreement also exists that those who reach a neutral port by their own efforts (for example by swimming or having operated a small rescue craft themselves), need to be set free.[33] In these situations, indeed, it may even be questioned whether Article 17 applies, if there was no ‘consent of the local authorities’ prior to their arrival.
1610  Beyond these points of agreement, there have been conflicting views over whether international law requires the wounded, sick or shipwrecked brought into a neutral port on board a hospital ship to be guarded, so that they cannot take any further part in operations of war.[34] Similarly, the requirements of international law are not uniformly settled with regard to those brought to a neutral port on board a belligerent or neutral merchant vessel. This is evident from one case that arose during the First World War,[35] from the preparatory work of the 1949 Diplomatic Conference,[36] and from some academic writings since then.[37]
1611  Ultimately, the final answer to this question hinges on a contemporary interpretation of Article 11 of the 1907 Hague Convention (V). It is not within the scope of this commentary to examine the current status of that provision. It can only be observed that, since 1907, States have not re-examined whether this rule still reflects the law. It would seem that up until today, as the drafters wanted it in 1949, neutral Powers’ ‘freedom of interpretation’ remains intact.[38]
Back to top
b. Substantive obligation
1612  According to Article 17, the neutral Power must, where so required by international law, and ‘failing arrangements to the contrary between the neutral and the belligerent Powers’, guard the wounded, sick or shipwrecked who land in its ports so that they ‘cannot again take part in operations of war’. For an analysis of these terms, see section C.3. of the commentary on Article 15 which applies mutatis mutandis.
Back to top
c. ‘arrangements to the contrary’
1613  Even if required by international law, the neutral Power incurs no obligation on the basis of Article 17 if there have been ‘arrangements to the contrary between the neutral and the belligerent Powers’. The word ‘arrangements’ suggests flexibility in terms of the form these take. To avoid any ambiguity over what is still an important consideration, however, a written agreement is desirable. It is clear from the wording (‘belligerent Powers’ in the plural) that a bilateral arrangement will not suffice, i.e. the arrangements must be concluded by the neutral Power with all relevant Parties to the international armed conflict in question, i.e. both the Power of origin of the wounded, sick or shipwrecked, as well as its enemy. The stringency of this requirement is fully justified. When such an arrangement is reached, all relevant Parties to the conflict release the neutral Power from the obligation to implement Article 17. This may be the case, for example, if they agree to allow the wounded, sick or shipwrecked who landed in a neutral port to return home. During the Falkland/Malvinas Islands conflict (1982), such an arrangement was reached between both belligerents (Argentina and the United Kingdom) and a neutral Power (Uruguay): British hospital ships evacuated British wounded, sick or shipwrecked to the Uruguayan capital Montevideo, from where they were repatriated to the United Kingdom by air.[39]
Back to top
D. Paragraph 2: The costs of hospital accommodation and internment
1614  In all instances in which the wounded, sick or shipwrecked are accommodated and interned by the neutral Power, the costs incurred are to be borne by the State on which they depend, i.e. the State that they served before coming under the jurisdiction of the neutral Power.[40] In most instances, this will be their State of nationality. However, in cases where an individual fights on behalf of a State other than their State of nationality, the costs of accommodation and internment shall be borne by the State on whose behalf they fight.[41]
1615  The principle that the ‘costs of hospital accommodation and internment shall be borne by the Powers on whom the wounded, sick or shipwrecked persons depend’ goes back to Article 12 of the 1907 Hague Convention (V).[42] It has been reported that, prior to the adoption of the Second Convention, ‘some neutral countries have never been reimbursed for the considerable expense which they incurred in this regard’.[43] The Second Convention does not address when, how, or to what amount such reimbursement is to be made. Everything will depend, therefore, on discussions and, ideally, an agreement on the matter between the Powers concerned.
Back to top
Select bibliography
Castrén, Erik, The Present Law of War and Neutrality, Suomalaisen Tiedeakatemian Toimituksia, Helsinki, 1954, pp. 498–499.
Özerden, Kemal, Le sort des militaires belligérants, victimes de la guerre, débarqués dans un port neutre, d’après la Convention de Genève, Pedone, Paris, 1971.
See also the select bibliography of the commentary on Article 5 of the Second Convention.

1 - The other two provisions, containing a similar obligation for the neutral Power, are Article 15 (concerning the wounded, sick or shipwrecked taken on board a neutral warship or a neutral military aircraft) and Article 40(3) (concerning the wounded, sick or shipwrecked brought into the territory of a neutral Power on a medical aircraft). On the relationship between international humanitarian law and the law of neutrality, see the commentary on Article 5, section A. For the definition of a ‘neutral Power’, see also the commentary on Article 5, section C.1.
2 - See Hague Convention (V) (1907), Article 11(1).
3 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 168.
4 - See Hague Convention (III) (1899), Article 10. Initially, a number of States had made a reservation with regard to this specific provision; see Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 117–118. See also Hague Convention (X) (1907), Article 15.
5 - For a discussion, see the commentary on Article 15, section C.2.
6 - For the interpretation of the term ‘at sea’ for the purposes of the Second Convention, see the commentary on Article 12, section D.2.
7 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 15–16, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 105.
8 - As per Article 10 of the 1907 Hague Convention (XIII): ‘The neutrality of a Power is not affected by the mere passage through its territorial waters of war-ships or prizes belonging to belligerents.’ See also Castrén, p. 498: Article 17 ‘does in fact provide that the permission of a neutral Power is necessary only for the accommodation in neutral territory of these victims of war. … In the light of certain provisions of [the Second Convention] (Article 21) it is probable that transports of wounded and sick soldiers may pass through neutral coastal waters in merchant ships without the neutral State being bound to intern them.’ See also Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 955.
9 - For the definition of warship, auxiliary vessel and merchant vessel, see the commentary on Article 14, para. 1520.
10 - Determining the belligerent or neutral character of a vessel will be straightforward in the case of warships and hospital ships: the former need to bear ‘external marks distinguishing the character and nationality’, while the latter ‘shall make themselves known by hoisting their national flag’; see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 13(g), and Second Convention, Article 43(2). As for auxiliary vessels, while they have the nationality of the State whose flag they are entitled to fly, they may be under the exclusive control of the armed forces of a State which is a Party to an international armed conflict; see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 13(h) and its explanation at para. 13.22. On that basis, they will qualify as belligerent vessels. When it comes to merchant vessels, ‘[t]he fact that a merchant vessel is flying the flag of an enemy State … is conclusive evidence of its enemy character’. The fact that a merchant vessel is flying the flag of a neutral State is, however, only ‘prima facie evidence of its neutral character’; see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 112–114.
11 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 118–119.
12 - For details, see para. 1608.
13 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 119–129. For an analysis of that Commentary, which supports the analysis developed here, see also Özerden, pp. 82–83: Cette thèse nous paraît être en contradiction avec le texte même de l’Article 17 et avec l’esprit des travaux de la Conférence. Quant au texte, il ne contient aucune mention d’un moyen de transport déterminé. Quant à l’esprit des travaux de la Conférence … on ne voit aucune limitation en ce qui concerne la nature du navire … . En effet, si l’on avait voulu faire des distinctions parmi les militaires débarquées suivant la nature des navires utilisés, il aurait fallu retenir et non écarter la proposition faite dans ce sens par la délégation du Royaume-Uni.’ (‘This hypothesis seems to contradict the text of Article 17 itself and the spirit of the proceedings of this Conference. The text, for its part, does not mention a specific mode of transport. As for the spirit of the Conference proceedings … there is no restriction regarding the nature of the ship … . In fact, if the aim had been to distinguish between the disembarked military personnel based on the nature of the ships used to transport them, it would have been necessary to accept rather than dismiss the proposal made in this regard by the delegation of the United Kingdom.’) For this amendment, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. III, p. 51, amendment 65: The persons referred to in Article 14 shall, however, if they reach a neutral port by their own efforts or in ship’s boats, or if they are picked up by a neutral merchant ship, be free; all civilians, including merchant seamen and civilian aircrews, sent to a neutral port by a belligerent captor, or picked up by a neutral ship, or reaching a neutral port by their own efforts or in ships’ boats shall likewise be free.
14 - For a discussion, see section C.2.
15 - Article 1 of the 1907 Hague Convention (V) states: ‘The territory of neutral Powers is inviolable.’ See also United States, Law of War Manual, 2016, para. 15.16.1: ‘A neutral State has discretion in whether to permit belligerent forces seeking refuge to enter its territory.’
16 - Proceedings of the Hague Peace Conference of 1899, p. 456: ‘[T]he neutral country will not be violating neutrality by receiving the wounded persons.’ There is a dilemma inherent in this relationship, as captured in ibid. p. 41: [I]n certain cases a belligerent will often court danger in getting rid of the sick and wounded who encumber him and hamper him in his operations; the neutral territory will thus help him to execute his hostile enterprise better. Nevertheless, it has seemed that considerations of humanity ought to prevail here. In most cases the disembarkment of the sick and wounded picked up, for instance, by hospital ships or merchantmen would be purely an act of charity, and if this were not done the suffering of the sick and wounded would be needlessly aggravated by prolonging the passage so as to reach a port of their own nation. It may happen too that the wounded and the sick thus landed will belong to both belligerents.
17 - See e.g. United States, Naval Handbook, 2007, para. 7.3.2.
18 - See SAR Convention (1979), Annex, paragraph 1.3.2, which defines ‘rescue’ as ‘an operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety’. A neutral port may be assumed, almost always, to constitute such a place of safety. On the question whether the SAR Convention applies in time of armed conflict, see Introduction, section C.5.f.
19 - See, in particular, SOLAS Convention (1974), Chapter V, Regulation 33, para. 1.1, and SAR Convention (1979), para. 3.1.9. A ‘place of safety’ is defined in the 2016 IAMSAR Manual, para. 3.1, as a location where rescue operations are considered to terminate; where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met; and, a place from which transportation arrangements can be made for the survivors’ next or final destination. A place of safety may be on land, or it may be on board a rescue unit or other suitable vessel or facility at sea that can serve as a place of safety until the survivors are disembarked at their next destination. On the question whether these instruments apply in time of armed conflict, see Introduction, section C.5.f.
20 - Convention on Facilitation of International Maritime Traffic (1965), Annex, Section 2, Part H (‘Special measures of facilitation for ships calling at ports in order to put ashore sick or injured crew members, passengers, persons rescued at sea or other persons for emergency medical treatment’) and International Maritime Organization, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, FAL.3/Circ.194, 22 January 2009.
21 - As stated, provided that any conditions or restrictions placed by the neutral Power on the stay of the belligerent vessel in the neutral port are applied equally to all Parties to the conflict; see Article 40(2).
22 - Özerden, p. 85.
23 - Except in Article 14, which uses the term ‘belligerent Party’.
24 - For references, see the commentary on Article 15, para. 16.
25 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 15, p. 36 (italics in the original)
26 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 62.
27 - See ibid. p. 107.
28 - See Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 121.
29 - See the commentary on Article 14, section C.1.c.
30 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 61: [A] neutral warship enjoyed immunity, and shipwrecked belligerents picked up by her could not be claimed by an enemy ship. On the other hand, the neutral State was under obligation to intern such shipwrecked persons. The rule was different in the case of merchant ships, from which it was permissible to take any wounded, sick or shipwrecked persons they might have on board. The neutral State had therefore no reason to intern shipwrecked persons who disembarked from such vessels in its ports. See also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 124.
31 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 118.
32 - Ibid. p. 120. The same principle applies to those taken on board a neutral warship or neutral military aircraft; see Article 15.
33 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 106 (Netherlands and Portugal). See also Robert W. Tucker, The Law of War and Neutrality at Sea, Vol. 50, US Government Printing Office, Washington, D.C., 1955, pp. 45–149, at 123: ‘The very disparity of State practice (from the Second World War with regard to those reaching neutral shore on their own efforts) would appear itself as a further indication that there is no recognized neutral duty of internment’. But see Castrén, p. 499: [As to] the question concerning the treatment of shipwrecked belligerent personnel who have succeeded in saving themselves without outside assistance and reaching a neutral shore from the high seas … [i]t seems that they must also be interned. Those who have escaped from an enemy vessel into neutral territory – for example, when the vessel has been in a neutral port or close to a neutral coast – are released according to the general rules, and the neutral State must then allow them to leave its territory. If, however, they remain, the authorities in the territory may nevertheless order them to stay in a particular locality.
34 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 121–124.
35 - The Law Times, Vol. 137, 1914, p. 503: The British sailors rescued from the three cruisers, H.M.S. Aboukir, Hogue, and Cressy, sunk by German submarines and brought to Holland [which, at the time, was a neutral Power in the conflict between Germany and Great Britain] in a Dutch trawler which rescued them will, in accordance with the principles of international morality, be regarded as absolutely free … If these men had been rescued by a neutral warship instead of a neutral merchantman, their treatment would have been different.
36 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 106: ‘there was no reason for interning persons who were landed in a neutral country by a neutral merchant ship …’; ‘wounded, sick or shipwrecked persons landed by a neutral merchant ship in a neutral port were free’; and p. 107: ‘it was a universally accepted practice for neutral Powers to regard themselves as being under no obligation to intern wounded, sick or shipwrecked persons landed in their territory by neutral merchant vessels’. Similarly, see draft article 5(3) in the Naval Expert Report of 1937: ‘Should these wounded, sick or shipwrecked men be landed in a neutral port by private and neutral merchant ships, boats, yachts or aircraft which have assumed no obligation whatever towards one of the belligerent powers, such wounded, sick or shipwrecked men shall be free.’ This rule was repeated, in substantively identical terms, as draft article 5(3) in Report of the Conference of Government Experts of 1947, p. 80, and as draft article 15(3) in Draft Conventions adopted by the 1948 Stockholm Conference, p. 36. See also Naval Expert Report of 1937. See also Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 310: ‘If a neutral merchant vessel which has casually picked up wounded or sick, or even shipwrecked men, arrives in a neutral port without having met a cruiser and without having entered into any agreement, the individuals which it disembarks do not come under the provision; they are free.’
37 - With regard to wounded, sick or shipwrecked persons rescued by a merchant vessel of a neutral State and brought into the territory of the latter, given that the Parties to the conflict did not exercise their right to request surrender on the basis of Article 14, it has been argued that ‘a margin of appreciation’ would exist for the neutral Power as to whether international law requires them to be guarded so that they cannot again take part in operations of war; see Yves Sandoz, ‘Rights, Powers and Obligations of Neutral Powers under the Conventions’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, p. 96. See also Joyce A.C. Gutteridge, ‘The Geneva Conventions of 1949’, British Yearbook of International Law, Vol. 26, pp. 294–326, at 309: ‘There is no generally recognized obligation to treat in the same manner (as for those arriving on board a neutral warship or neutral military aircraft) wounded, sick, and shipwrecked arriving at a neutral port in a neutral merchant vessel or neutral civil aircraft.’ See also Robert W. Tucker, The Law of War and Neutrality at Sea, Vol. 50, US Government Printing Office, Washington, D.C., 1955, pp. 45–149, at 123: ‘[t]he neutral State is under no obligation to resort to internment’ for ‘wounded, sick and shipwrecked who are brought into neutral ports by neutral merchant ships’. Lastly, see Castrén, pp. 498–499: ‘International treaties do not refer to belligerent personnel saved by neutral merchant ships. The majority of writers seem to hold that if they are taken by the merchant vessel into a neutral port, they need not be prevented from later participating in war operations. The arguments for the opposite conclusion seem, however, to carry greater weight.’ (Emphasis in the original.) See also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 124–125.
38 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 105–106 (‘each Contracting Party would have complete liberty of interpretation’) and p. 200 (‘While recognizing that many questions affecting the position of (neutral States) had not been solved by the Xth Hague Conference, Committee I did not consider itself competent to interpret international law concerning survivors who had been landed. A number of problems will arise in connection with the latter; but the Committee is not competent to solve them.’)
39 - Sylvie-Stoyanka Junod, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1985, p. 21.
40 - See also United States, Law of War Manual, 2016, para. 9.1.2.1.
41 - Similarly, see Article 15(2) of the 1907 Hague Convention (X) and Article 40(3) of the Second Convention.
42 - Article 12 of the 1907 Hague Convention (V) states: ‘In the absence of a special convention to the contrary, the neutral Power shall supply the interned with the food, clothing, and relief required by humanity. At the conclusion of peace the expenses caused by the internment shall be made good.’
43 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 123.