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Commentary of 2017 
Article 35 : Conditions not depriving hospital ships of protection
Text of the provision
The following conditions shall not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them:
1) The fact that the crews of ships or sick-bays are armed for the maintenance of order, for their own defence or that of the sick and wounded.
2) The presence on board of apparatus exclusively intended to facilitate navigation or communication.
3) The discovery on board hospital ships or in sick-bays of portable arms and ammunition taken from the wounded, sick and shipwrecked and not yet handed to the proper service.
4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the crews extend to the care of wounded, sick or shipwrecked civilians.
5) The transport of equipment and of personnel intended exclusively for medical duties, over and above the normal requirements.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Purpose of the provision
  • D. Paragraph 1: Armed crews
  • E. Paragraph 2: Navigation or communication equipment
  • F. Paragraph 3: Portable arms and ammunition taken from the wounded, sick and shipwrecked
  • G. Paragraph 4: Assistance to wounded, sick or shipwrecked civilians
  • H. Paragraph 5: Transport of surplus medical equipment and personnel
  • Select bibliography
    A. Introduction
    2404  Article 35, which was drafted in parallel with Article 22 of the First Convention, lists five conditions that do not deprive hospital ships and sickbays of warships of their special protection. In accordance with paragraphs 1 and 3, the presence on board hospital ships or in sickbays of portable arms and ammunition may not be considered a violation of the conditions of their employment or an ‘act harmful to the enemy’ in the sense of Article 34(1). These provisions were agreed upon against the backdrop of the two world wars and the nature of naval warfare that the delegates were familiar with in 1949. They have been understood as implicitly prohibiting hospital ships from being equipped with defence systems and heavy arms. In view of the conditions of modern naval warfare and new security threats, it has been doubted whether they continue to be operable or whether they need to be adapted to meet the interests of Parties to a conflict.
    2405  Paragraph 2 seems to state the obvious, because apparatuses exclusively facilitating navigation or communication are indispensable for the safety of hospital ships and for the effective performance of their humanitarian function. Still, the provision is of great practical significance, in particular because means of communication on board hospital ships have long been regarded with suspicion. The situation in paragraph 3 must be clearly distinguished from the arming of hospital ships. Paragraph 4 provides another, similarly important clarification of the legitimate uses of hospital ships and sickbays. Although they do not belong to any of the categories of protected persons mentioned in Article 13, the fact that the ‘humanitarian activities of hospital ships and sick-bays … or of the crews are extended to wounded, sick or shipwrecked civilians’ may not be considered as depriving them of their protection. The same holds true, under paragraph 5, if hospital ships transport surplus medical equipment or supernumerary medical personnel. Still, neither paragraph 4 nor paragraph 5 may detract from the obligation for hospital ships and sickbays to be used primarily for rendering assistance to the persons enumerated in Article 13.
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    B. Historical background
    2406  The first two paragraphs of Article 35 are substantively identical to Article 8(2) of the 1907 Hague Convention (X),[1] which had no equivalent in either the 1868 Additional Articles relating to the Condition of the Wounded in War or the 1899 Hague Convention (III). Article 8(2) of the 1907 Hague Convention (X) was borrowed from Article 8 of the 1906 Convention,[2] but the provision on arms taken from the wounded and not yet turned over to the proper authorities was not reproduced in the 1907 Hague Convention (X) because it was considered unnecessary in the naval context.[3]
    2407  At the 1907 Second Hague Peace Conference, there was general agreement that ‘[t]he staffs of the hospital ships and the sick wards of men-of-war may be armed, either for maintaining order on board or for protecting the sick and wounded … , as long as the arms are used only for the purposes indicated’.[4] With a view to protecting hospital ships against illegal attacks, the German delegation had proposed to allow hospital ships to be ‘armed with pieces of light ordnance to guard against the dangers of navigation, and more particularly as a protection against any act of piracy’. That proposal was rejected because ‘the opinion which finally prevailed was that arming the ship is by no means necessary. Merchant ships are not armed and do not run greater risks. Of course it would be permissible to have a cannon on board for the purpose of signaling.’[5] As regards the permissibility of the presence of a wireless on board hospital ships, there were some doubts as to whether a provision to that effect was advisable. The President of the Third Commission believed that the presence of such an apparatus was ‘of a nature to beget suspicions’.[6] Other delegates responded that, if there were grounds for suspicion of abuse, a commander ‘may either have the transmitting apparatus removed or have the aerial wires cut’. One delegate pointed out that ‘the transmitting apparatus is more complicated and more difficult to use than the receiving apparatus’. He added that the employment of a wireless was ‘so widespread as to have become an absolute necessity for navigation’.[7] Eventually, a clear majority was in favour of retaining the provision on the admissibility of a wireless apparatus on board.
    2408  During the First and Second World Wars, the fact that the crews of hospital ships and sickbays of warships were armed, and the presence of small arms taken from the wounded, seemingly posed no significant problems. As regards the assistance rendered to civilians, the generally held view was that ‘the sick and wounded civilian has not so far, illogical though it might seem to the framers of the Convention, obtained protection, unless he or she is shipwrecked or falls within the limited categories mentioned above’,[8] i.e. of Article 13. However, during the Second World War, protection was in fact extended to ‘sick and wounded persons attached to the armed forces generally, whether on land, at sea, or in the air, and later to the sick and wounded wives and dependants of both classes’.[9] Still, the wording of the 1899 and 1907 Hague Conventions did not necessarily support that conclusion.[10] The presence of means of communication on board hospital ships, in particular of a wireless, continued to be met with suspicion, and hospital ships were captured and condemned because they had been used as signalling ships for military purposes.[11] Lastly, it was unclear whether and to what extent hospital ships were allowed to transport medical equipment and medical personnel if they were destined for the forces in the field (or for other hospital ships). In this regard, it has been stated: ‘[T]he fact that they usually have a one-way flow of passengers … makes it economical to use them to transport medical stores and supplies for the forces in the field on the outward voyage’.[12] Again, the 1907 Hague Convention (X) did not necessarily support the view that such transports would not be of a nature to deprive hospital ships of their protection.
    2409  Paragraph 2 of Article 8 of the 1907 Hague Convention (X) found its way into paragraph 3 of draft article 15 proposed by the 1937 Commission of Naval Experts, who also suggested some minor modifications and amendments.[13] Apart from the reference to small signal guns or line-carrying guns, which was deleted, the 1937 proposal was accepted by the 1946 Preliminary Conference of National Societies[14] and, with minor modifications, by the 1947 Conference of Government Experts.[15] Prior to the Diplomatic Conference of Geneva of 1949, draft article 29(4), which served as a basis for discussion, was amended by a fourth sub-paragraph, which provided that ‘the fact that the humanitarian activities of hospital ships and sick-bays or of the crews extend to the care of wounded, sick or shipwrecked civilians’ shall not be considered as justifying loss of protection.[16]
    2410  During the 1949 Diplomatic Conference, paragraphs 1 to 4 of draft article 29 became a separate draft article, 29A, which, in the course of the Conference, was slightly modified by the Drafting Committee.[17] The discussion in Committee I focused on the issue of the transport of surplus equipment and supernumerary medical personnel. The Dutch delegate stated that they were not liable to capture, ‘provided their presence on board had been notified’.[18] The French delegate
    thought that there should be certain restrictions on the transport of surplus equipment and supernumerary medical personnel, both in the interests of the personnel themselves and of the sick and wounded for whose benefit the equipment was carried. He therefore proposed, in order to prevent any argument, that the words ‘provided a list of such equipment and personnel has been communicated to the adverse Power’ should be added at the end of sub-paragraph (5).[19]
    2411  The Canadian delegate was opposed to that proposal because a ‘hospital ship should be entitled to accommodate a larger number of medical personnel than was strictly necessary, if only in order to allow them to complete their training. Such personnel should only be required to be in possession of the recognized means of proving his identity.’[20] The French delegate then proposed to speak of the number of supernumerary medical personnel and to retain the word ‘list’ in regard to equipment only. Eventually, the French proposal was rejected. Only paragraph 5 of draft article 29A was modified by the insertion of the words ‘and personnel’ between the words ‘equipment’ and ‘usually’. The other provisions of draft article 29A did not give rise to further discussion. In particular, there was agreement that ‘apparatus such as radar etc. was sufficiently covered by the Stockholm wording’.[21] Hence, article 29A, as proposed by the Drafting Committee and amended by Committee I, was adopted. However, the text of paragraph 5 was again modified prior to the final adoption insofar as the last part of the sentence was changed from ‘over and above the equipment usually required’ to ‘over and above the normal requirements’.[22]
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    C. Purpose of the provision
    2412  Article 35 sets out five conditions not depriving military and private hospital ships or the sickbays of warships of protection, i.e. which must not be regarded as acts harmful to the enemy.[23] They are particular cases where hospital ships and sickbays retain their character and their right to special protection, despite certain appearances which might have led to the opposite conclusion or at least given rise to doubt. The object of the provision was to avoid disputes, which arise too easily between opposing Parties.
    2413  It must be borne in mind that the provision aims not merely to exclude certain activities of hospital ships and sickbays from the concept of ‘acts harmful to the enemy’ in the sense of Article 34(1). As explained in the commentary on that article, such acts deprive hospital ships and sickbays of their protection against attack only if further conditions are met.[24] Non-compliance with the other conditions of their employment will never justify an attack, but may deprive them of their protection against capture or measures to enforce compliance. Hence, the provision must be seen in a broader context. It aims at preserving the comprehensive protection of hospital ships and sickbays. None of the conditions enumerated here may be considered an act contrary to their exclusively humanitarian function or serve as a justification for capture.
    2414  Against that background, the question arises whether the list in Article 35 is comprehensive. The wording of Article 35 could be read to suggest that this is the case, but the context of Articles 30 and 34 reveals that hospital ships will not necessarily lose their protection in other instances, although they are not expressly referred to in Article 35. For instance, hospital ships may accompany enemy warships,[25] they may be equipped with purely deflective means of defence and they may possess means of communication using encryption.[26]
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    D. Paragraph 1: Armed crews
    2415  The right of the crews of hospital ships and sickbays to carry arms and use them, if necessary, for the maintenance of order or for their own defence or that of the sick and wounded is well established. It has been recognized since 1907 and has a counterpart in Article 22(1) of the First Convention. While the text does not mention them explicitly, the same principle applies to the religious, medical and hospital personnel of these ships and sickbays.[27]
    2416  Under Article 30(1), hospital ships are obliged to afford assistance impartially, and the wounded, sick and shipwrecked on board will often be enemy combatants.[28] This may also be the case with sickbays, if, after an engagement, wounded, sick or shipwrecked enemy personnel have been rescued and taken on board the warship. In these circumstances, it is quite possible that they will try to escape, create disturbances or start disputes with others, or even commit hostile acts against members of the crew or fellow patients. Conversely, they could be attacked by those on board for the mere fact of belonging to the adverse Party. The necessity for effective means to maintain and enforce order, and for defence in case the crew or patients are physically attacked, is obvious.[29] Therefore, the purpose of the provision is undoubtedly to make it possible for the medical personnel to ensure the maintenance of order and discipline on a hospital ship or in a sickbay, as in a hospital on land, and to protect it against individual hostile acts by pillagers or irresponsible members of the armed forces. A medical establishment is under military discipline, and must be provided with the necessary guards, if only to prevent patients from leaving the premises without permission or from committing hostile acts, and to ensure that the medical personnel enjoy the respect to which they are entitled. Similarly, access must be denied to unauthorized persons, for instance members of the armed forces who might seek refuge there though not entitled to do so.
    2417  Paragraph 1 being limited to the said purposes, it is sufficient for the crews of hospital ships and sickbays to carry light individual weapons (e.g. sidearms and rifles) and other means of enforcing order, such as batons or riot-control agents.[30]
    2418  The fact that paragraph 1 focuses on the use of such weapons on board the hospital ship or within the sickbay of a warship should not be misunderstood as precluding the right of their crews to also use their weapons in defence against illegal attacks by the adversary or by pirates and other criminals. Such use would not qualify as an ‘act harmful to the enemy’ under Article 34(1), because one cannot expect such personnel to allow themselves to be killed. If it became apparent that the enemy was making a deliberate attack on the hospital ship or medical unit, in flagrant violation of the Geneva Conventions, then the medical personnel would have no option but to surrender and strike the colours.
    2419  In view of the foregoing and the fact that Article 35 is silent on the issue, the arming of a hospital ship or sickbay with other than light individual weapons could be considered as depriving them of their protection. Indeed, a medical establishment, whether on land or at sea, cannot have a real system of defence against military operations. It is inconceivable that a medical unit could resist by force of arms a systematic and deliberate attack by the enemy. Forces of considerable strength would be needed, and by definition a medical establishment cannot have such forces at its disposal. If such an attack were made, any resistance by a few orderlies would probably serve only to intensify the attack. It is the business of the armed forces alone to repulse attacks, and only they can do so successfully. In the light of recent State practice and the development of weapons technology, however, it is less clear today whether such a strict position can still be taken.
    2420  The nature of naval operations has changed considerably. In 1949, the States Parties could be satisfied with stating that hospital ships, during and after an engagement, will act at their own risk (Article 30(4)). Today, warships, including submarines, and military aircraft will not only use their guns or bombs but also missiles that may be fired from beyond visual range. Although many sea-to-sea and air-to-sea missiles are relatively precise, they may accidentally hit a hospital ship because they have been diverted from their course by countermeasures or because their sensors have locked on to the wrong target, namely a hospital ship. The proposal that the personnel should use all the means at their disposal to warn the enemy of the error and of the consequences entailed (by signals, notification, sending a spokesperson bearing a flag of truce, etc.) will, under the conditions of modern warfare at sea, often prove to be unworkable. Therefore, the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea provides that hospital ships ‘may be equipped with purely deflective means of defence, such as chaff and flares. The presence of such equipment should be notified.’[31] The Group of Experts who drafted the manual
    thought that as there is no prohibition on hospital ships defending themselves, it would be unreasonable not to allow them to do so as long as it is in a way that cannot be interpreted as being potentially aggressive … . As hospital ships are likely to be in the vicinity of warships, the chances of their being hit in this way are quite high and not allowing them this means of defence would mean that they are more likely to be hit than warships, which would be an absurd result.[32]
    2421  A separate issue is the arming of hospital ships with heavy weapons that cannot be considered ‘purely deflective means of defence’. It may be recalled that, in 1907, a proposal to allow hospital ships to be equipped with arms capable of repelling pirate attacks was rejected.[33] Of course, heavier weapons will often prove to be the only effective means against illegal attacks by pirates, terrorists or other criminals. Even so, weapons other than light individual arms should not be used by the personnel of hospital ships and sickbays because the enemy may legitimately consider such arming an ‘act harmful to the enemy’.[34]
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    E. Paragraph 2: Navigation or communication equipment
    2422  Hospital ships, in order to fulfil their humanitarian tasks, often have to navigate in sea areas remote from their home base. Each sea area has its own characteristics and risks. Moreover, conditions may change rapidly; for instance, sandbanks can move. It is therefore self-evident that hospital ships must have the on-board equipment necessary for a safe voyage and for the performance of their tasks at sea. In the same vein, they must be equipped with means of communication enabling them not only to exchange messages with their home base or the warships of the Parties to the conflict, but also with other ships, aircraft and providers of information about sea and weather conditions. In 1949, the technology available to facilitate navigation and communication was far less advanced than it is today. This does not mean, however, that hospital ships and sickbays may be equipped only with navigation and communication installations or devices that were known or in use at the time of the adoption of the Convention. The States Parties were well aware of potential technological advances and certainly did not intend to deny hospital ships use of the latest, state-of the art navigation and communication technology. Hence, the term ‘apparatus exclusively intended to facilitate navigation or communication’ is to be understood as implying openness to technological progress.
    2423  It should be emphasized nonetheless that, despite the openness of the term, the apparatus must ‘exclusively’ serve the said purposes. It must, by design, be capable only of facilitating navigation or communication; its use may not be combined with other activities (such as intelligence-gathering), and it may not be misused for military purposes (see also Article 30(2) and Article 34(1)) or for purposes outside the hospital ship’s humanitarian functions (Article 30(1)). As seen in the context of the prohibition of the possession or use of a secret code in Article 34(2),[35] it is sometimes difficult to reconcile the rather strict conditions of the employment of hospital ships with the necessity of providing them with the best technology available in order to ensure that they are able to assist victims in the most effective manner and to guarantee their safety and the safety of their crews and personnel. Still, it is possible to identify the equipment that is exclusively intended to facilitate navigation or communication and that may thus be installed on board hospital ships. This could be accomplished by reference to the 1974 SOLAS Convention and the 1972 COLREG Convention in such a manner that equipment for the safety of navigation provided for by these treaties will regularly be in compliance with Article 35. On the question of whether these treaties apply in armed conflict, see Introduction, section C.5.(e)–(f).
    2424  Subject to the prohibition of possessing or using a secret code for the transmission of data and information of military value,[36] hospital ships and sickbays may be equipped with any communication system. The admissible means of communication are not limited to VHF and MF/HF (medium frequency/high frequency) installations. They include NAVTEX receivers, i.e. apparatuses for receiving data from the automated system for distributing maritime navigational warnings, weather forecasts and warnings, search-and-rescue notices and similar information to ships. As seen in the context of Article 34(2), hospital ships and sickbays may also be equipped with satellite communication systems that use encryption, which include INMARSAT A, B and C.[37]
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    F. Paragraph 3: Portable arms and ammunition taken from the wounded, sick and shipwrecked
    2425  In 1907, it was considered unnecessary to include in the Hague Convention (X) a provision on small arms and ammunition taken from the wounded, sick and shipwrecked and discovered on board hospital ships or in sickbays.[38] The delegates probably believed that, at sea, the wounded, sick and shipwrecked would no longer carry arms and ammunition. Indeed, the probability that they will be carrying them at the time of their rescue is rather low. The amendment of Article 35 by paragraph 3 may therefore be explained more by the wish to correspond as far as possible to Article 22 of the First Convention than by practical necessity. Still, it cannot be absolutely ruled out that the wounded, sick and shipwrecked will carry arms at the time they are collected. Since hospital ships and sickbays may, in principle, not be equipped with arms and ammunition (other than those carried by their crews in accordance with paragraph 1), those taken from the wounded, sick and shipwrecked must be handed to the ‘proper service’, i.e. a warship or the military authorities on land. Hence, the practical relevance is limited to hospital ships because the sickbays referred to are those on board warships (Article 28), and there should always be sufficient space in other compartments of a warship where the arms and ammunition can be stored.
    2426  In the case of hospital ships, the handing over to a warship or to the military authorities on land will usually take some time. Should a hospital ship be inspected by the enemy before it has been able to get rid of those arms, it is not deprived of protection, provided that the arms and ammunition have been stored in a safe place.
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    G. Paragraph 4: Assistance to wounded, sick or shipwrecked civilians
    2427  Paragraph 4 was first introduced in 1948.[39] Although it may have been inspired by the wish to synchronize Article 35 with its counterpart in Article 22(5) of the First Convention, it constitutes an important clarification of the law applicable to hospital ships and sickbays. It may be recalled that under the 1899 Hague Convention (III) and the 1907 Hague Convention (X), ‘civilians stood safely outside the arena and required neither consideration nor protection in a Convention expressly stated to be intended as an adaptation to maritime warfare of the principles of the Geneva Convention relating to warfare on land’.[40] It may also be recalled that Articles 12 and 13 do not extend the Second Convention’s protective scope to wounded, sick and shipwrecked civilians who belong to none of the six categories enumerated in Article 13.[41] Hence, it is safe to conclude that, under the Second Convention, as under its predecessors, rendering assistance to wounded, sick and shipwrecked civilians, including the crews and passengers of neutral merchant vessels,[42] does not constitute one of the core humanitarian functions of hospital ships and sickbays.
    2428  Nevertheless, the extension was essential in view of the character of modern warfare. Military personnel and civilians may now be struck down on the same spot and by the same act of war. In such cases, they must be able to be treated by the same orderlies and accommodated in the same ships or establishments. Hence, although not part of their core functions, hospital ships and sickbays may render assistance to wounded, sick and shipwrecked civilians who do not belong to any of the categories mentioned in Article 13. Since the causes of sickness, injuries or shipwreck are irrelevant, every civilian found at sea may benefit from their services, whether sick or wounded or not. Moreover, civilians who are sick or wounded may be taken on board hospital ships in port.[43] It is important to note that, according to Article 22(1) of Additional Protocol I, hospital ships may ‘carry civilian wounded, sick and shipwrecked who do not belong to any of the categories mentioned in Article 13 of the Second Convention’.
    2429  It must be borne in mind, however, that it is neither the purpose nor the effect of this sub-paragraph to extend the benefits of the Convention to all sick civilians in general. Rather, it follows from the foregoing, and from the fact that civilians to whom a hospital ship or a sickbay renders assistance must be in need of that assistance because of their physical condition at sea.[44] Accordingly, civilians in port or on land who are neither wounded nor sick may not be taken on board hospital ships even if they find themselves in a desperate situation (e.g. refugees or displaced persons).[45]
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    H. Paragraph 5: Transport of surplus medical equipment and personnel
    2430  It is self-evident that hospital ships and sickbays must have the equipment and personnel necessary for rendering effective assistance to the wounded, sick and shipwrecked. Since neither the number of those in need of assistance nor the gravity of their physical condition is foreseeable, there is no objective yardstick as to the amount of equipment or the number of personnel hospital ships and sickbays may have. It all depends on the ‘normal requirements’, which means it depends on the circumstances ruling at the time.
    2431  Under paragraph 5, hospital ships may transport equipment and personnel ‘over and above the normal requirements’. As the drafting history reveals, the personnel, in order to effectively perform their medical duties, must be adequately trained, and it is important that such training also be able to take place on board a hospital ship on active duty.[46] It may sometimes be necessary to transport medical personnel and equipment to another hospital ship or to a medical installation on land. However, this does not mean that hospital ships may be used as transport ships for medical items. The carriage of surplus medical stores and supplies and of supernumerary medical personnel ‘must be subordinate to the dominant object of the voyage, i.e. to pick up casualties at its destination’.[47] In its report, Committee I of the 1949 Diplomatic Conference explained:
    The intention of this provision is to prevent hospital ships being used as a means of transport for large quantities of material, in particular rolling-stock, or large units of medical personnel. Had this paragraph not been inserted, difficulties might have arisen from the presence on board a hospital ship of personnel on their way to undertake the care of wounded and sick, on the pretext that they were not members of its usual personnel.[48]
    2432  Since the issue of ships exclusively used for the conveyance of medical equipment is specifically addressed by Article 38, and since hospital ships should be used predominantly for assisting and transporting the wounded, sick and shipwrecked, the transport of surplus medical equipment and supernumerary medical personnel must remain the exception.[49]
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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.
    Mossop, J.C., ‘Hospital Ships in the Second World War’, British Yearbook of International Law, Vol. 24, 1947, pp. 398–406.

    1 - Article 8(2) of the 1907 Hague Convention (X) reads as follows: ‘The fact of the staff of [hospital] ships and sick wards being armed for maintaining order and for defending the sick and wounded, and the presence of wireless telegraphy apparatus on board, is not a sufficient reason for withdrawing protection.’
    2 - Article 8 of the 1906 Geneva Convention reads as follows: A sanitary formation or establishment shall not be deprived of the protection accorded by Article 6 by the fact: 1. That the personnel of a formation or establishment is armed and uses its arms in self defense or in defense of its sick and wounded. 2. That in the absence of armed hospital attendants, the formation is guarded by an armed detachment or by sentinels acting under competent orders. 3. That arms or cartridges, taken from the wounded and not yet turned over to the proper authorities, are found in the formation or establishment.
    3 - See Proceedings of the Hague Peace Conference of 1907, Vol. I, p. 71.
    4 - Ibid. See also the second sentence of Article 44 of the 1913 Oxford Manual on Naval War.
    5 - Ibid.
    6 - Ibid. Vol. III, p. 300.
    7 - Ibid. pp. 300-301.
    8 - Mossop, pp. 400.
    9 - Ibid.
    10 - Mossop, ibid. therefore suggests that, ‘quite apart from the desirability of specifying the classes of casualties entitled to be carried, it is essential as a matter of both logic and common humanity to extend the protection offered by hospital ships to sick and wounded civilians when the Convention is next revised’.
    11 - 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 and Garner. For the concept of military signalling, see the commentary on Article 34, para. 2365.
    12 - Mossop, p. 401.
    13 - See Naval Expert Report of 1937, p. 32. Draft article 15(3) read as follows: The following circumstances shall not be held to justify the withdrawal of protection: 1) The fact that the personnel of such vessels is armed for the maintenance of order and the defence of the wounded and sick. 2) The existence on board of wireless-telegraphy apparatus, small signal guns or line-carrying guns. 3) The fact of finding on board hospital ships or in sick-bays small arms and ammunition taken from the wounded, sick or shipwrecked and not yet handed over to the proper authority.
    14 - Report of the Preliminary Conference of National Societies of 1946, p. 60.
    15 - Report of the Conference of Government Experts of 1947, pp. 91–92.
    16 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 40.
    17 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 148, and Vol. II-B, p. 168. Article 29A, as amended by the Drafting Committee, read as follows: The following conditions shall not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them: (1) The fact that the crews of the ships or the sick-bays are armed for the maintenance of order, for their own defence or that of the wounded and sick. (2) The presence on board of apparatus exclusively intended to facilitate navigation or communication. (3) The discovery on board hospital ships or in sick-bays of portable arms and ammunition taken from the wounded, sick and shipwrecked, and not yet handed to the proper service. (4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the crews, extend to the care of wounded, sick or shipwrecked civilians. (5) The transport of equipment and of personnel intended exclusively for medical duties, over and above the equipment usually required.
    18 - Ibid. Vol. II-A, p. 149.
    19 - Ibid.
    20 - Ibid.
    21 - Ibid.
    22 - Ibid. p. 227.
    23 - For the question of whether the provision also applies to coastal rescue craft, see the commentary on Article 34, para. 2372.
    24 - See the commentary on Article 34, section C.4.
    25 - For the issue of hospital ships convoyed by enemy warships, see the commentary on Article 30, para. 2272 and the commentary on Article 34, para. 2376.
    26 - See paras 2421 and 2424, and the commentary on Article 34, section D.1.
    27 - See also the commentary on Article 36, para. 2491.
    28 - Note that, according to Article 16, they become prisoners of war if they fall into the hands of the enemy.
    29 - See e.g. United States, Law of War Manual, 2016, para. 7.12.6.3.
    30 - See ibid. para. 7.12.6.3: ‘The type of weapon that is necessary for defensive or other legitimate purposes may depend on the nature of the threats against the hospital ship. … [C]rews of hospital ships should not be armed such that they would appear to an enemy military force to present an offensive threat.’ It should be noted that the use of riot control agents in order to restore order cannot be considered the use of a chemical weapon as a method of warfare.
    31 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 170. As to the obligation to notify, see the commentary on Article 22, section C.4 and section D.
    32 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 170.2. See also United States, Law of War Manual, 2016, para. 7.12.6.3: ‘Equipping hospital ships with other defensive devices – such as chaff for protection against over-the-horizon weapons or similar threats – is not prohibited. However, such devices, like weapons, must not be used to commit acts harmful to enemy military forces acting in conformity with the law of war.’
    33 - Supra para. 2407.
    34 - For further details, see the commentary on Article 34, paras 2377–2378. See, however, United States, Law of War Manual, 2016, para. 7.12.6.3: ‘[H]ospital ships may be armed with defensive weapon systems, including when necessary certain crew-served weapons, as a prudent anti-terrorism/force protection (AT/FP) measure to defend against small boat attacks.’ See also 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 221–223.
    35 - See the commentary on Article 34, section D.
    36 - Ibid.
    37 - Ibid. section D.2.
    38 - Proceedings of the Hague Peace Conference of 1907, Vol. I, p. 71.
    39 - Supra para. 2409.
    40 - Mossop, p. 399.
    41 - See also Robert W. Tucker, The Law of War and Neutrality at Sea, US Government Printing Office, Washington, D.C., 1957, p. 120, fn. 77, who observes that the ‘fact that “shipwreck” is defined as meaning “shipwrecked from any cause” does not alter the situation, since whatever the cause it still applies only to the persons mentioned in Article 13.’
    42 - See the commentary on Article 22, section C.1.f.iv.
    43 - Ibid.
    44 - Note that sick or wounded crew members or passengers of an enemy or neutral merchant vessel that is to be destroyed under prize law may be taken on board a hospital ship in exceptional cases only because otherwise the commander of the intercepting warship would be relieved of the duty to place the crew and passengers in a place of safety before destroying the prize. See the commentary on Article 22, para 1974.
    45 - Ibid.
    46 - See para 2411.
    47 - Mossop, p. 401, adds that ‘it would not be a legitimate use of a hospital ship simply to visit neutral ports and there collect medical stores under the immunity afforded by the Convention’.
    48 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 203.
    49 - For further details, see the commentary on Article 22, para. 1957.