Treaties, States Parties and Commentaries
  • Print page
Commentary of 1960 

This provision is new. Neither the 1899 Convention nor that of 1907 contained a provision granting protection to the personnel of hospital ships. It has, nevertheless, never been disputed that such personnel enjoy full security and are exempt from capture. Renault wrote as follows in 1899: "In principle, there is no need to consider the case of medical personnel on board a hospital ship; since the ship must be respected, the personnel on board will not be hindered in carrying out their duties" (1).
It is a good thing that the gap has now been filled, as the International Committee of the Red Cross had proposed in 1937. It would have been inconceivable to devote a whole Chapter to the protection of medical personnel without in the first place mentioning the personnel of hospital ships. It was still more necessary to specify that the crew of such ships were also entitled to immunity.
In the Commentary on the First Convention, we have emphasized the great change made in 1949 in the status of medical personnel attached to the armed forces on land who fall into the [p.204] hands of the adverse Party: the latter is fully entitled to retain some of them in order to assist in treating prisoners of war.
The solution adopted in regard to maritime warfare is fundamentally different, particularly in the case of the personnel of hospital ships. The liberal conception adopted in 1864 and 1907 has been maintained completely, and the religious, medical and hospital personnel assigned to a hospital ship, likewise the crew, may not be either captured or retained. The difference is fully justified: a hospital ship could no longer carry out its duties if it were deprived of its personnel and crew, for those men constitute, so to speak, an integral part of the ship. As has been said, the ship would be merely a derelict. The protection which the preceding Chapter of the Convention affords to hospital ships would become illusory.
The protection of the personnel and crew is strengthened by two additional references. Such persons are to be protected throughout the time they are in the service of the hospital ship, and so may not be retained if they have had to leave their ship temporarily or to land. Similarly, their immunity may not be suspended if at any time there are no wounded or sick on board, for the ship must be able to move freely, even with no passengers, and must be ready to put to sea at any moment.
As regards the various categories of medical personnel considered here and the general principles applicable to them, the reader should refer to the introduction to the present Chapter.
Article 36 covers only the personnel necessary for the hospital ship to function properly. It cannot cover any excess medical personnel whom the ship is authorized to transport pursuant to Article 35, sub-paragraph (5) ; Article 37 , which will be commented upon below, refers to such personnel.
As we have seen, the medical personnel of hospital ships will belong either to the Medical Service of a belligerent, or to a National Red Cross Society or another recognized relief society of a belligerent or a neutral country. As regards the personnel of a hospital ship made available by a generous private person (pursuant to Articles 24 and 25 ), there would be every advantage in enrolling them in the Medical Service or a relief society, if they were not already members. If, however, that formality had not been carried [p.205] out for some reason, such personnel would naturally continue to be protected by the present provision, though in a private civilian capacity.
It is no innovation for the crew of hospital ships to be protected by the Geneva Conventions. The members of a ship's crew are part of the administrative staff of the medical services, just like an ambulance driver on land. They will therefore belong to the Medical Service or to a recognized relief society. Members of the crew of a yacht made available by a private individual could be enrolled in the official or voluntary medical services. If that had not been done, they would still remain members of the merchant marine, but would enjoy all the protection afforded by Article 36.
It remains for us to consider the status and protection to be accorded to the crews of coastal rescue craft and coastal installations. Pursuant to Article 27 of the present Convention, they will be protected from attack while they are an integral part of such craft and installations. Apart from that, however, are they covered by Articles 36 and 37 and can they claim the special status and constant protection specified in those Articles? In our opinion, they cannot. Indeed, lifeboat crews are not mentioned. Article 36 refers only to the personnel of hospital ships, while Article 37 applies only to personnel assigned to the care of the persons designated in Articles 12 and 13 -- that is to say, members of the armed forces and persons assimilated thereto who are the victims of war at sea. The Second Geneva Convention is not intended to protect civilian personnel who are searching for shipwrecked civilians. Such personnel may not wear the red cross armlet or carry the identity card mentioned in Article 42 . On the other hand, Articles 16 and 63 of the Fourth Geneva Convention of 1949, relative to the protection of civilians, contain provisions intended to assist rescue operations. Certain facilities must be afforded to those participating in such operations.
It should also be noted that the personnel of hospital ships are -- given constant protection because they are exclusively assigned to hospital duties. Lifeboat crews, on the other hand, will sometimes consist of part-time volunteers, that is to say, persons who are normally engaged in some other activity and take up rescue duties only in case of need.
[p.206] The Seventh International Conference of Lifeboat Organizations, held at Estoril in 1955, adopted a resolution reading in part as follows" ... 6. Considering that the protection of personnel, of which the extent derives from the protection stipulated in favour of the coastal lifeboats and their shore installations when the personnel is in service in these boats and at these installations, and that the Geneva Convention relative to the Protection of Civilian Persons in Time of War contains in Articles 16 and 63 dispositions made to promote rescue operations; Recommends that this protection should be rendered effective by the delivering to this personnel, by the national authorities, of a special identity card and, during their service at the boats, of a distinctive armlet" (2).
This is one more humanitarian problem in urgent need of solution since the Second Convention does not settle all its various aspects -- and indeed it is not within the scope of that instrument to do so.

* (1) [(1) p.203] See ' Actes ' of the 1899 Conference, p. 36;

(2) [(1) p.206] See Gilbert GIDEL: op. cit., p. 549;