Treaties, States Parties and Commentaries
  • Print page
Commentary of 2017 
Article 28 : Protection of sick-bays
Text of the provision
Should fighting occur on board a warship, the sick-bays shall be respected and spared as far as possible. Sick-bays and their equipment shall remain subject to the laws of warfare, but may not be diverted from their purpose so long as they are required for the wounded and sick. Nevertheless, the commander into whose power they have fallen may, after ensuring the proper care of the wounded and sick who are accommodated therein, apply them to other purposes in case of urgent military necessity.
Reservations or declarations
None
Contents

A. Introduction
2221  Although included in the chapter entitled ‘Hospital Ships’, the present provision does not actually relate to such ships. The first sentence obliges belligerents, should fighting occur on board a warship, to respect and to spare, as far as possible, the ship’s sick-bays. Even in 1907 such an obligation was considered to be of minor practical relevance. Today, there is even less likelihood that fighting will take place on board a warship. Nevertheless, the fact that this provision was retained is important, because it is in line with the First Convention, particularly Article 33(2),[1] and because it expresses a general principle of the Geneva Conventions: all installations dedicated to the care of the wounded and sick must be respected.
2222  The provisions in the second and third sentences, which are almost identical to Article 33(2) of the First Convention, are of continuing practical relevance because warships are still likely to be captured.[2] On the one hand, the captor is prohibited from diverting sick-bays and their equipment from their purpose, unless they are no longer required for the wounded and sick. On the other hand, sick-bays and their equipment remain subject to the laws of warfare, i.e. they are booty of war, and property pass to the captor uno actu (by one and the same act) upon capture. However, for the duration of the armed conflict, sick-bays and their equipment, unless the ship is refitted, may only be used for a purpose other than that originally intended in case of urgent military necessity and after the commander has ensured proper care of the wounded and sick therein.
Back to top
B. Historical background
2223  In the days when naval warfare was conducted by galleys and sailing ships, their guns were of relatively short range. As a result, naval battles were typically very close encounters in which it was not uncommon for the crew of a warship to board an enemy vessel and engage in hand-to-hand fighting, using small arms and edged weapons.[3] With the emergence of modern warships equipped with much longer-range weapons, the likelihood of on-board fighting decreased considerably.
2224  Neither the 1868 Additional Articles relating to the Condition of the Wounded in War nor the 1899 Hague Convention (III) contain provisions on the protection of the sick-bays of warships and their equipment.[4] It is therefore surprising that the delegates to the Hague Peace Conference in 1907 adopted a provision to that effect, which eventually became Article 7 of the 1907 Hague Convention (X).[5] It must be borne in mind, however, that the delegates were determined to remain as close as possible to the 1906 Geneva Convention.[6] As explained in the report to the Third Commission, the new Article 7 ‘provides for a situation analogous to that covered by Articles 6 and 15 of the Convention of 1906’.[7] While Article 7 was adopted without discussion, it was generally agreed that fighting on board a warship was ‘very rare today in maritime war’.[8]
2225  The draft articles proposed by the 1937 Commission of Naval Experts did not contain a provision similar to Article 7 of the 1907 Hague Convention (X); instead, there was merely a general reference to the ‘protection to which hospital ships and sick-bays of vessels are entitled’ in draft article 15(1), which eventually became Article 34(1) of the Second Convention. According to the commentary on the draft article, the Commission of Naval Experts was aware that ‘the obligation to protect the sick-bays of vessels merely arises in the event of fighting on board’.[9] Nevertheless, the Commission ‘thought it preferable to retain the provision regarding the protection of the sick-bays of vessels, as it had never given rise to any discussion and as its disappearance might be regarded as evidence of retrogression as compared with the present text of the Maritime Convention’.[10]
2226  The Preliminary Conference of National Societies in 1946, in its draft article 15,[11] adopted the same approach as the Commission of Naval Experts by referring merely to the protection of sick-bays, without reference to the applicability of the ‘laws of warfare’ or to the right to divert sick-bays and their equipment to other purposes. Article 28, as it stands today, was first introduced by the 1947 Conference of Government Experts, in its draft article 16,[12] which was then adopted, as draft article 34, by the 1948 International Conference of the Red Cross in Stockholm.[13]
2227  At the 1949 Diplomatic Conference the delegates endorsed draft article 34 because they were determined to include in the Second Convention a provision corresponding to Article 33(2) of the First Convention. Article 21C,[14] which broadly resembled Article 7 of the 1907 Hague Convention (X), was adopted without discussion[15] and eventually became Article 28 of the Second Convention.
Back to top
C. Discussion
2228  At first glance, the inclusion of Article 28 in Chapter III – ‘Hospital Ships’ – may seem odd, but it was the best option as, otherwise, the subject of sick-bays and their equipment would have required a separate chapter or section. Because fighting on board warships was considered highly improbable, a separate chapter or section would have seemed excessive. By including Article 28 in Chapter III, it was possible to refer to the sick-bays of warships also in Articles 34 and 35.
Back to top
1. First sentence: Respect for and sparing of sick-bays of warships
a. Scope of applicability
2229  The obligation to respect and to spare in the first sentence applies only to the sick-bays of warships when fighting occurs on board such ships:[16] the warships in themselves continue to be lawful military objectives. Article 28, in other words, remains without prejudice to the law regulating the conduct of hostilities.[17] Seemingly, the delegates to the 1949 Diplomatic Conference were not prepared to afford protection to the sick-bays of other vessels, including merchant vessels, although the drafts of 1937 and 1946 referred to the ‘sick-bays of vessels’. This is surprising insofar as, during both world wars, enemy and neutral merchant vessels were considered military objectives if they contributed to the enemy’s military action.[18] Therefore, it would have been logical to deal in Article 28 with the sick-bays of all vessels qualifying as lawful targets. The explicit mention of warships only, however, means that Article 28 does not apply to the sick-bays of other vessels on board which fighting might occur. This does not mean that they are not protected under the Second Convention, or under international humanitarian law in general. Specifically, neutral merchant vessels that have taken on board wounded, sick or shipwrecked persons are protected under Article 21. Furthermore, according to the general humanitarian purpose of the Geneva Conventions, all installations dedicated to the care of the wounded and sick must be respected. This means that the sick-bays of other vessels, including enemy merchant vessels, must be respected in the same manner as the sick-bays of warships.
2230  According to the first sentence, the sick-bays of warships must be respected and spared only ‘should fighting occur on board’. The obligation does not apply to attacks from a distance.[19] Such attacks continue to be governed by all the rules and principles of international humanitarian law applicable to targeting. Thus, the scope of applicability of the first sentence is limited to situations that will likely be rare in contemporary naval warfare.
Back to top
b. Obligation to respect and to spare
2231  The obligation to respect means that, despite the fighting on board, direct attacks against, or any other intentional interference with the functioning of, the sick-bays of warships are prohibited.[20] That would include damage to, or destruction of, the equipment. Note that this obligation is combined with one to spare, rather than to protect. ‘To spare’ means ‘to refrain from inflicting harm’.[21] Accordingly, those engaged in fighting on board a warship are not obliged to take active (positive) measures to ensure respect by others. Rather, they are obliged to use force in such a manner as to prevent incidental damage to the sick-bays.
2232  The obligation to respect and to spare is not absolute; it applies merely ‘as far as possible’. ‘Possible’ means ‘that which is likely or achievable’.[22] Thus, it depends on the circumstances prevailing at the time of the fighting, in particular on what is reasonably achievable by those engaged in the fighting. Accordingly, there is no obligation to take unnecessary risks.[23] However, this does not mean that considerations of military necessity or self-preservation will always prevail. Since the sick-bays must be respected and spared ‘as far as possible’, those engaged in the fighting must make all feasible efforts to refrain from directly attacking or inflicting incidental damage on the sick-bays.
2233  The protection of sick-bays on board warships, unless refitted, only ceases if and insofar as the conditions of Article 34 are met. The protection of sick-bays neither requires nor depends on their being marked with the distinctive emblem.[24]
Back to top
2. Second and third sentences: Sick-bays and their equipment as booty of war and the prohibition of diverting them from their purpose
2234  The provisions of the second and third sentences apply not only to the rare situation of fighting on board a warship but also from the moment the warship falls into the hands of the enemy, i.e. if it is captured.
2235  The reference to the ‘laws of warfare’ means that sick-bays and their equipment that have fallen into the hands of the enemy may be taken as booty of war, because they are movable public property of the adverse Party:[25] ‘The acquisition of title over booty in warfare is automatic. Thus, in contradistinction to prize law in naval warfare, there is no need of any adjudication in order to condemn the property captured as booty and confirm the transfer of title from one belligerent party to another.’[26] Normally, the captor will be at liberty to deal with the property in any manner he chooses, including through destruction. However, in the case of warship sick-bays and their equipment, that right is qualified. Although property passes uno actu upon capture, the captor is prohibited from diverting them ‘from their purpose so long as they are required for the wounded and sick’. In other words, the captor may not confiscate, divert from their purpose or destroy the sick-bays if doing so will compromise the interests of the wounded and sick being treated and/or nursed in the sick bay. In most circumstances, the mere presence of wounded and sick persons in the sick-bay will trigger this qualification.
2236  The second sentence must be read in conjunction with the third sentence. Accordingly, the prohibition of diverting sick-bays and their equipment from their purpose continues to apply even after they are no longer required for the wounded and sick accommodated therein. This follows from the use of the term ‘nevertheless’. Sick-bays and their equipment may be used for other than their humanitarian purposes only ‘after ensuring the proper care of the wounded and sick who are accommodated therein’ and ‘in case of urgent military necessity’. If those joint conditions are not met, the captor must continue to use the sick-bays and their equipment for their original purposes and nothing else. ‘Proper care’ means that the wounded and sick must be transferred to another vessel which has the equipment and installations to provide them with the treatment and accommodation they need. The notion of ‘military necessity’ encompasses a wide variety of tactical and operational considerations, including the possibility of destroying the warship after the fighting on board has ended. This does not mean that diverting sick-bays and their equipment from their humanitarian purpose becomes lawful as soon as there is a tactical or operational interest at stake. Rather, use of the term ‘urgent’ indicates that those considerations must be such that ‘immediate action’[27] is required. Sick-bays and their equipment may be used for another purpose only if necessary to serve an important military interest and only if this can be accomplished by using them for military purposes.
2237  Lastly, it is important to note that there has been no practice to date in respect of this provision, in particular regarding circumstances that could amount to ‘urgent military necessity’ and that would therefore justify the use of sick-bays for other than medical purposes.
Back to top
Select bibliography
See the select bibliography of the commentary on Article 22 of the Second Convention.

1 - Article 33(2) of the First Convention provides: The buildings, material and stores of fixed medical establishments of the armed forces shall remain subject to the laws of war, but may not be diverted from their purpose as long as they are required for the care of wounded and sick. Nevertheless, the commanders of forces in the field may make use of them, in case of urgent military necessity, provided that they make previous arrangements for the welfare of the wounded and sick who are nursed in them.
2 - For instance, during the Suez Crisis (1956), the Israel Defense Forces captured the Egyptian warship Ibrahim el Awal, which was incorporated into the Israeli Navy as INF Haifa. See Wolff Heintschel von Heinegg, ‘The Law of Military Operations at Sea’, in Terry D. Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations, 2nd edition, Oxford University Press, 2015, pp. 375–421, at 395.
3 - The last well-known instances of hand-to-hand fighting between crews of warships occurred during the Napoleonic Wars and the Anglo-American War of 1812. Notable among them was the capture of USS Chesapeake by HMS Shannon on 1 June 1813, which took place during a period of transition when, in a 15-minute action, effective long-range British gunfire quickly reduced the ill-prepared American vessel in order to capture it quickly. Jeremy Black, Naval Power: A History of Warfare and the Sea from 1500, Palgrave Macmillan, Basingstoke, 2009, pp. 12–13, notes that boarding was prevalent when the object in naval warfare was to capture a ship rather than to sink or destroy it. (‘In the medieval period, it had been common to board rival warships, and boarding was not suddenly replaced by firepower in the sixteenth century … [V]ery few naval battles were concerned to sink the enemy, as there was little gain to be had in it.’ See also, on p. 19: ‘The rising importance of firepower led to a shift towards stand-off tactics in which ships less frequently came into direct contact, and boarding therefore became more difficult.’)
4 - It may be added that, according to Article 7 of the 1868 Additional Articles relating to the Condition of the Wounded in War, the medical and hospital staff of any captured vessel were allowed, on leaving the ship, to ‘remove the articles and surgical instruments which are their private property’. Thus, items constituting public property remained liable to be captured.
5 - Article 7 of the 1907 Hague Convention (X) reads: In the case of a fight on board a war-ship, the sick wards shall be respected and spared as far as possible. The said sick wards and the material belonging to them remain subject to the laws of war; they cannot, however, be used for any purpose other than that for which they were originally intended, so long as they are required for the sick and wounded. The commander, however, into whose power they have fallen may apply them to other purposes, if the military situation requires it, after seeing that the sick and wounded on board are properly provided for. A nearly identical rule appears in Article 43 of the 1913 Oxford Manual of Naval War.
6 - That is, the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 6 July 1906, which was replaced by the 1929 Geneva Convention on the Wounded and Sick.
7 - Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 308.
8 - Ibid. p. 300.
9 - See Naval Expert Report of 1937, p. 33.
10 - Ibid.
11 - Report of the Conference of Government Experts of 1947, p. 59.
12 - Ibid. p. 91
13 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 40.
14 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 226.
15 - Ibid. Vol. II-B, p. 168.
16 - For the definition of ‘warship’, see the commentary on Article 14, para. 1520.
17 - See United States, Law of War Manual, 2016, para. 5.10.1.2: ‘[T]he expected incidental harm to a sick-bay on a warship would not serve to exempt that warship from being made the object of attack.’
18 - See Colombos, The International Law of the Sea, pp. 521–527 and 700–713; Oppenheim, pp. 465–497; and Tucker, pp. 55–73 and 318–331. For the contemporary law of naval warfare, according to which enemy and neutral merchant vessels may, in certain circumstances, qualify as military objectives, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 60 and 67.
19 - This had already been made clear during the Second Hague Peace Conference in 1907: ‘A slight misunderstanding arose with regard to the amendment of the German delegation, which read: “During the fight the sick wards on board the war vessels shall be respected and spared as far as possible.” At first, only fights at a distance were thought of, as these are by far more frequent, and naturally it was hard to understand how during such fights the sick wards could be respected. But the provision refers to a fight on board, which makes it perfectly comprehensible. A slight modification in the phrasing of the amendment sufficed to dispel this obscurity.’ See Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 308.
20 - For the concept of ‘respect’, see the commentary on Article 12, section E.
21 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1383.
22 - Ibid. p. 1120.
23 - In this vein, see e.g. United States, Law of War Manual, 2016, para. 7.12.6.1: The obligation to refrain from use of force against … a sick-bay 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.
24 - For further details, see the commentary on Article 41, para. 2675.
25 - For the concept of ‘booty of war’, see Yoram Dinstein, ‘Booty in Warfare’, version of March 2008, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
26 - Ibid. para. 6.
27 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1592.