Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 23 : Protection of medical establishments ashore
Text of the provision
Establishments ashore entitled to the protection of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, shall be protected from bombardment or attack from the sea.
Reservations or declarations
None
Contents

A. Introduction
2015  This provision of the Second Convention deals with a very specific scenario: attacks launched from the sea against land-based establishments entitled to the protection of the First Convention. The provision prohibits such attacks. If launched from land or from the airspace above land, the attack would be prohibited on the basis of Article 19 of the First Convention. Thus, an attack on an establishment protected under the First Convention is prohibited, regardless of its geographic point of departure.
2016  Article 23 of the Second Convention goes hand in hand with Article 20 of the First Convention: the former prohibits attacks from the sea against medical units and establishments entitled to the protection of the First Convention, while the latter prohibits attacks from land against hospital ships entitled to the protection of the Second Convention.[1]
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B. Historical background
2017  Article 23, as such, has no precursor in previous treaties.[2] It originates from an amendment introduced by the United Kingdom during the 1949 Diplomatic Conference. In the initial version, the amendment combined the substantive elements of what eventually became Article 20 of the First Convention and Article 23 of the Second Convention. In the UK proposal this amendment was to be included in the Second Convention.[3]
2018  When the amendment was discussed, some delegations questioned whether it had any added value. Did it not state the obvious in that ‘[f]ixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected’ (emphasis added)?[4] It was felt that the more generally phrased rule aptly captured the protection of such establishments, and that there was no need to go into particular scenarios. Indeed, an attack from the sea is only one among several possible scenarios in which medical establishments on land might find themselves attacked. Establishments protected under the First Convention must not be attacked from an aircraft either, and this holds true irrespective of whether the aircraft in question is flying above land (in which case the First Convention applies) or above sea (in which case the Second Convention applies).[5]
2019  When a proposal by one delegation to delete the UK amendment was put to a vote, it failed to attract sufficient support.[6] Other than a sense that the provision undoubtedly reflected the humanitarian considerations which the Convention sought to turn into binding law, the main reason the article was retained seems to have been an abundance of caution.[7] The delegates at the 1949 Diplomatic Conference who opted in favour of including the amendment were concerned that commanders of ‘armed forces in the field’ would not be familiar with the substantive rules of the Second Convention and that commanders of ‘armed forces at sea’ would not be familiar with the substantive rules of the First Convention.[8]
2020  In line with this concern, it was decided to split the substance of the amendment in two parts, becoming Article 20 of the First Convention and Article 23 of the Second Convention, respectively. Thus, the message could be delivered where it was felt to be most needed.
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C. The prohibition of attacks from the sea
2021  Under Article 23, ‘[e]stablishments ashore entitled to the protection of’ the First Convention ‘shall be protected from bombardment or attack from the sea’. Each of these terms is analysed below.
2022  For an interpretation of the word ‘sea’ in the context of the Second Convention, see the commentary on Article 12, section D.2. Islands in the sea qualify as ‘land’, on which there may be ‘establishments ashore entitled to the protection’ of the First Convention.[9]
2023  Article 23 of the Second Convention applies to any persons at sea or in the air while flying above the sea, and this irrespective of the branch of the armed forces they belong to. The provision similarly applies to underwater platforms such as submarines. This understanding also flows from the logic underpinning Article 4 of the Second Convention.[10]
2024  The phrase ‘establishments ashore entitled to the protection of’ the First Convention includes all establishments covered by Article 19 of the First Convention. By adopting the terminology of ‘entitled to the protection’, the rule remains without prejudice to circumstances in which these establishments may lose their protection.[11]
2025  Article 23 of the Second Convention states that the establishments ashore entitled to the protection of the First Convention ‘shall be protected from bombardment or attack from the sea’. In this, the wording differs from the mirror provision in Article 20 of the First Convention, which states ‘shall not be attacked’. The latter is much more straightforward and is, actually, the terminology used in the equally authentic French version of Article 23 of the Second Convention (‘ne devront être ni attaqués ni bombardés de la mer’). Unlike armed forces in the field, armed forces at sea are not bound by an obligation to ‘protect’ establishments ashore. Armed forces at sea are bound, however, by a prohibition against attacking such establishments. Under the Geneva Conventions, no definition exists of the verb ‘[to] attack’. Under Additional Protocol I, the noun ‘attack’ is defined in Article 49(1). The term ‘bombardment’ is also left undefined in the Geneva Conventions.[12] Of course, every bombardment will qualify as an ‘attack’ in the sense of Additional Protocol I.[13]
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D. The place of Article 23 in contemporary international humanitarian law
2026  The stated rationale for including Article 23 in the Second Convention stemmed from the desire to ensure that armed forces at sea – familiar with the Second Convention – were aware of the protection due to medical units and establishments under the First Convention. The prohibition on attacking medical units and establishments is also contained in the much more generally phrased, and wider, obligation to ‘respect and protect’ them ‘at all times’, as provided for in Article 19(1) of the First Convention.
2027  The insertion of Article 23 in the Second Convention was done at a time when – at least in terms of treaty law – the law applicable to the conduct of hostilities had not yet undergone the development and refinement it would eventually undergo in Articles 48–58 of Additional Protocol I. In the framework of Additional Protocol I, it is clear that ‘establishments ashore entitled to the protection of’ the First Convention cannot be considered military objectives.[14] It is now well accepted that the rules on the conduct of hostilities, as embodied in Articles 48–58 of Additional Protocol I, along with those rules which can be considered part of customary international law, apply irrespective of the area the naval forces seek to target.[15]
2028  Furthermore, a violation of Article 23 of the Second Convention may amount to a grave breach of the Convention, as well as to the war crime of intentionally directing attacks against medical transports using the distinctive emblems of the Geneva Conventions in conformity with international law.[16]
2029  Since Article 23 of the Second Convention states an obvious point, it has attracted no debate or controversy. The provision remains valid but stands in the shadow of more generally phrased rules (such as Article 19(1) of the First Convention) of which it is simply an illustration.
2030  ‘Establishments ashore entitled to the protection of’ the First Convention are but one of the categories of objects which must not be attacked from the sea.[17] Every object which does not qualify as a ‘military objective’ is likewise protected against an attack from the sea.

1 - To get the full picture of the interrelationship between the First and Second Conventions, see Articles 4, 20(2), 27(2), 37(3) of the Second Convention, and the commentary on Article 36 of the Second Convention, Section C.2.a.
2 - It should be noted, however, that Article 1(1) of the 1907 Hague Convention (IX), which deals with ‘bombardment by naval forces in time of war’, states: ‘The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden.’ On this, see Wolff Heintschel von Heinegg, ‘The Development of the Law of Naval Warfare from the Nineteenth to the Twenty-First Century – Some Select Issues’, Yearbook of International Humanitarian Law, Vol. 17, 2014, pp. 69–93, at 89: ‘Although Hague Convention IX (1907) seems to be recognized as declaratory of customary international law, its current relevance is but minor. Attacks by naval forces against targets on land will in most cases have to be assessed in the light of the Additional Protocol I (1977).’
3 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 146.
4 - First Convention, Article 19(1), first sentence.
5 - Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, Vol. I, p. 48.
6 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 147.
7 - See Raoul Genet, ‘La Révision de la Xe Convention de la Haye relative à la guerre sur mer’, Revue internationale française du droit des gens, No. 7, 1951, p. 69.
8 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 147.
9 - See the commentary on Article 20 of the First Convention, para. 1829.
10 - For details, see the commentary on Article 4, section C.
11 - For details, see Articles 21 and 22 of the First Convention.
12 - The 1907 Hague Convention (IX), which deals with ‘bombardment by naval forces in time of war’, also does not define the term.
13 - The Austrian delegate had already made this point at the 1949 Diplomatic Conference: ‘[A] bombardment was an attack. To suggest anything to the contrary even once, risked giving an aggressor using bombs the excuse that a bombardment did not constitute an attack.’; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 140.
14 - The scenario of Article 23 of the Second Convention falls squarely within the scope of application of Articles 48–67 of Additional Protocol I; see Article 49(3) of the Protocol: ‘The provisions of this Section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.’ (Emphasis added.)
15 - Wolff Heintschel von Heinegg, ‘The international legal framework of submarine operations’, Israel Yearbook on Human Rights, Vol. 39, 2009, pp. 331–356, at 345.
16 - See the commentary on Article 51, section D.6.a, and ICC Statute (1998), Article 8(2)(b)(xxiv).
17 - The fact that establishments protected under the Fourth Convention were not referred to in Article 23 of the Second Convention can be taken as further evidence that this article was merely meant to serve as a reminder to armed forces covered by the Second Convention of the existence of the First Convention (and vice versa).