Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 18 : Search for casualties after an engagement
Text of the provision*
(1) After each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.
(2) Whenever circumstances permit, the Parties to the conflict shall conclude local arrangements for the removal of the wounded and sick by sea from a besieged or encircled area and for the passage of medical and religious personnel and equipment on their way to that area.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1616  Article 18(1) complements Article 12 by requiring that, after each engagement, Parties to an international armed conflict take all possible measures to search for and collect persons protected by the Second Convention who are shipwrecked, wounded, sick or dead as a result of the hostilities. Article 18 thus sets out specific obligations that flow from the obligation of Article 12 to respect and protect the wounded, sick and shipwrecked.[1]
1617  Article 18(1) is among the most important provisions in the Second Convention. The search for and collection of casualties after a naval engagement, by the Parties to the conflict themselves, is paramount in achieving one of the core objectives of the Convention. When hostilities are taking place at sea,[2] the Parties to the conflict may be the only entities sufficiently close to the victims to search for and collect them.
1618  The obligations of Article 18 must be implemented impartially, in the sense of Article 12.[3] Accordingly, where the Parties to the armed conflict have suffered casualties, Article 18 requires them to search for and collect all the shipwrecked, wounded, sick and dead, without discriminating between their own and enemy personnel.
1619  The obligation to ‘take all possible measures’ applies, as a matter of international humanitarian law, to the ‘Parties to the conflict’ as a whole.[4] Under international criminal law, conduct in violation of Article 18(1) that leads to the death of protected persons may trigger individual criminal responsibility on the basis of the grave breach of wilful killing by omission.[5]
1620  If an area on land is ‘besieged or encircled’, Article 18(2) requires the Parties to the conflict, whenever circumstances permit, to conclude ‘local arrangements’ to evacuate the wounded and sick by sea or to allow for the passage of medical and religious personnel and equipment to the area.
1621  As far as international humanitarian law is concerned, obligations similar to those in Article 18 are contained in the First Convention, the Fourth Convention and the 1977 Additional Protocols, and they also exist under customary international law.[6]
1622  There is a wide array of rules in general international treaty and customary law requiring entities other than the Parties to the conflict to render assistance to persons in distress at sea.[7] The notion of ‘persons in distress at sea’ covers more than, but also includes, the shipwrecked, wounded and sick who are protected persons in the sense of Articles 12 and 13 of the Second Convention.[8] The application of those rules to Parties to a conflict and to neutral Powers is addressed in the Introduction, section C.5.e-f.
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B. Historical background
1623  The obligation to search for and collect the shipwrecked, wounded, sick and dead after each engagement has been part of the law of naval warfare since the adoption in 1907 of the Hague Convention (X). Article 16(1) of that Convention read: ‘After every engagement, the two belligerents, so far as military interests permit, shall take steps to look for the shipwrecked, sick, and wounded, and to protect them, as well as the dead, against pillage and ill-treatment.’ This paragraph was adopted without discussion at the 1907 Hague Peace Conference, except for a mention that it was based on Article 3 of the 1906 Geneva Convention.[9] A similar provision can be found in the 1913 Oxford Manual on Naval War.[10]
1624  The Commission of Naval Experts, convened by the ICRC in 1937 to consider the revision of the 1907 Hague Convention (X), proposed the following article, also adopted without discussion: ‘After every engagement the two belligerents shall, in so far as military considerations allow, take steps to search for the shipwrecked, wounded and sick, and to protect them, together with the dead, from pillage and maltreatment.’[11]
1625  Incidents during the Second World War raised legal issues regarding the obligation to search for the survivors of a naval engagement. This, in turn, led to trials in which the issue was assessed from the angle of individual criminal liability under international law.[12]
1626  The Conference of Government Experts in 1947 replaced the phrases ‘military interests’/‘military considerations’ with ‘all possible measures’.[13] For its part, the Diplomatic Conference in 1949 added the duty to ‘collect’ to the duty to ‘search’ for the shipwrecked, wounded, sick and dead.[14]
1627  No provision equivalent to Article 18(2) was included in the 1907 Hague Convention (X). The rule featured – although for land warfare – in the 1929 Geneva Convention on the Wounded and Sick. The idea that a similar provision should be inserted in the Geneva Convention dealing with warfare at sea was initially rejected. The 1937 Commission of Naval Experts considered that arrangements ‘to permit the removal, exchange and transport of the wounded left on the battlefield’ simply ‘would not be applicable in maritime warfare’.[15]
1628  However, the notion was included in the draft maritime convention which was approved by the 1948 International Conference of the Red Cross in Stockholm and which served as the working document for the 1949 Diplomatic Conference.[16] The provision was adopted without substantive discussion as Article 18(2) of the final text. It was observed at the Conference that ‘[t]he experience gained during the last war has demonstrated the usefulness of the possibility of evacuating the wounded and sick from a besieged or encircled zone by sea, as well as carrying reinforcements of personnel and medical stores by sea to that zone. New provisions make this possible by local agreement.’[17]
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C. Paragraph 1: Search, collection and care
1. Addressees of the obligation
1629  The obligations of paragraph 1 apply to the ‘Parties to the conflict’, i.e. the States party to an international armed conflict.
1630  At the operational level, in and near the zone of combat, Article 18(1) applies to commanders on the spot or nearby, including the commander of the warship, military aircraft or other asset that carried out the operation that created the casualties. If a ship is close to the place where the obligations of Article 18 are to be implemented, and depending on such factors as the temperature of the water, it may be the only entity in a position to save those in need, notably shipwrecked persons.
1631  In addition to the commander who is on the spot or nearby, responsibility for compliance with Article 18 ultimately lies with the ‘Party to the conflict’. This notion includes the Party’s organs on land, which may have to dispatch other naval or aerial assets to carry out the obligations of Article 18(1).
1632  The obligations of Article 18(1) apply equally to the Party to the conflict that inflicted the casualties (and its allies to the extent that they are also Parties to the conflict) and to the Party to the conflict to which the casualties belong.
1633  Article 18 does not exclude the possibility that other entities may also be obliged, pursuant to international legal obligations other than those imposed by international humanitarian law, to assist persons protected by the Second Convention.[18] Furthermore, even when not required to do so by international law, some of them may be willing to take such action. In reality, it may be that the sheer number of casualties and their ensuing protection needs outweigh the search and rescue capabilities of the Parties to the conflict. Therefore, those lacking the means to rescue or recover the shipwrecked, wounded, sick and dead should call upon external entities to help.[19] Article 21, for example, envisions the possibility to ‘appeal to the charity’ of neutral vessels. There may be specific circumstances in which this possibility becomes an obligation.[20]
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2. The obligation to take all possible measures
1634  As indicated by the word ‘shall’, compliance with Article 18(1) after each engagement is not merely optional or desirable, but mandatory.
1635  The obligation to take the measures referred to in Article 18 is an obligation of conduct. The character of the obligation is made clear by the wording ‘take all possible measures’. Therefore, the obligation is to be exercised with due diligence.[21] Precisely what due diligence requires in a given situation depends both on the norm which is to be implemented and on the circumstances.[22] The relevant point of reference is what would be expected of a reasonable commander in the given circumstances.[23] In addition to the timing of search and rescue activities, this applies to the kind of measures to be taken, such as the number of suitably qualified personnel and the type of equipment to be deployed.
1636  The scope of what a Party to the conflict is actually required to do on the basis of Article 18(1) will depend on the interpretation of the qualifier ‘possible’. What will be possible in the circumstances is inherently context-specific. Thus, the measures that must be taken in each case have to be determined in good faith, based on the circumstances and the information reasonably available to both the commanders on the spot or nearby and to the other organs acting on behalf of the Party to the conflict.
1637  In this regard, the fact that the obligation of Article 18(1) applies to the ‘Party to the conflict’ as a whole is critical. Thus, it may occur that the commander of a single warship or even of an entire naval task-force considers, in a good-faith assessment, that it is impossible to undertake, with the assets under his or her command, any of the activities required under Article 18. This does not, however, absolve those overseeing the commander’s operations (who will have a fuller picture of the situation and may be able to deploy other assets) from assessing what ‘possible measures’ can – and therefore must – be taken. Nor does it absolve the commander from considering other activities that are possible, such as alerting nearby coastal authorities or other vessels in the area or making an ‘appeal to the charity’ of neutral vessels in the sense of Article 21. Depending on the situation, a Party to the conflict may be legally obliged to inform neutral vessels in the vicinity that there are shipwrecked, wounded, sick or dead in need of rescue or recovery, and appeal to their charity to take them on board and care for them.[24] Furthermore, Article 17(2) of Additional Protocol I foresees that ‘[t]he Parties to the conflict may appeal to the civilian population and the aid societies [such as National Red Cross or Red Crescent Societies] … to collect and care for the wounded, sick and shipwrecked, and to search for the dead’.
1638  A Party to the conflict, including its commander in the area who learns that shipwrecked, wounded, sick and dead persons are in the vicinity, may be required, depending on the circumstances, to inform other entities, especially neutral humanitarian organizations with appropriate maritime and aerial assets at their disposal, and, if possible, to provide them with more detailed information (such as a precise latitude and longitude or GPS coordinates) on the exact whereabouts of such persons, as well as on their numbers and condition. In addition, offers of services from impartial humanitarian organizations which have the appropriate means to search for and collect the shipwrecked, wounded, sick and dead must not be refused on arbitrary grounds.[25]
1639  Logically, the more shipwrecked, wounded, sick and dead persons there are, the greater the search and rescue capabilities that will most probably be required. If a Party to the conflict has significant resources in terms of personnel and equipment at its disposal, their deployment would be required insofar as it would be reasonable to use them. This is especially the case when the known or suspected casualties are the result of an attack by air or other long-range/stand-off assets. In such cases, a commander may know or expect that the attack will result in casualties, but it may not always be feasible for the attacking force to engage in search and rescue activities.[26]
1640  All measures which are ‘possible’ are legally required; no Party to an armed conflict is legally required to do the impossible. In its ordinary meaning, what is ‘possible’ is that which is ‘capable of existing, happening, or being achieved’, i.e. ‘that which is likely or achievable’.[27] In order for the interpretation of the term ‘possible’ to be operationally viable, it must be acknowledged that the measures to be taken on the basis of Article 18 may be ‘subject to practical limitations’.[28]
1641  It has been noted that the vessel’s operational capacity circumscribes what is ‘possible’.[29] A vessel will probably have the capacity to take extra people on board in an emergency, but there will be a practical limit to how many.[30] However, even if every measure that is ‘possible’ for that particular vessel has been taken, such as providing the shipwrecked, wounded and sick with the means (lifeboats, food, water, etc.) to await rescue or reach the coast, the commander of the vessel, to the extent possible, should still alert other vessels/aircraft or his or her own authorities to the existence and location of these persons.[31]
1642  The question of a vessel’s operational capacity arises with particular significance in the case of submarines (and even more so in the case of unmanned naval systems). As a matter of international law, submarines are bound by the same rules as surface vessels, and Article 18 is no exception.[32] In practice, of course, space is extremely limited on board a submarine, thus complicating their ability to take on board shipwrecked, wounded and sick, let alone dead, persons. Thus, several commentators, using different formulations, concur that a submarine may not be required itself to surface in order to carry out a search and rescue operation, for which it may be ill-equipped to begin with.[33] This does not mean, however, that a submarine, which, for example, has successfully torpedoed an enemy warship, would not be required to assess what other measures may be ‘possible’ for it to undertake.[34]
1643  Provided doing so does not render the submarine detectable to the enemy (this assessment belongs to the analysis of the security/military considerations discussed in paras 1649–1652), Article 18 may require its commander to alert his or her own authorities and, where possible, other entities, to the location of the attack and to the possibility that there may be survivors, thereby allowing the Party to the conflict to assess which ‘possible measures’ may be taken, for example sending other vessels to the area. While doing so may not be possible seconds after launching its weapon, it may become feasible once the submarine has moved away from the area.[35]
1644  Going one step further, the view has also been expressed that submarines remain obliged, where possible, to supply materials such as lifeboats, survival craft (including inflatable rafts), buoyancy aids, alert aids, detection aids, food and water.[36] Depending on the circumstances, the only way for a submarine to do this may be to surface. This may not always be possible.
1645  Depending on the available technology, such as satellites and unmanned aerial platforms, a Party to the conflict may also be able to carry out an assessment of the numbers and location of the shipwrecked, wounded, sick and dead, without necessarily having to rely on information provided by the commander of the submarine.
1646  In the decades since 1949, the capabilities of naval and air forces have evolved to include ever longer-distance attack capabilities. In practical terms, it may not be possible for a vessel that has fired a weapon from a significant distance against an enemy warship to fulfil the requirements of Article 18 itself. The same applies when a naval mine or an unmanned naval system damages or destroys an enemy warship. In all these cases, it may be that nobody is physically nearby to comply – ‘without delay’ – with Article 18(1). Even so, the Party to the conflict remains legally bound to assess what remains ‘possible’. After each engagement and as far as possible, the geographical location of the attacked vessel or aircraft should be disclosed with as much precision as possible not only to the Party’s own chain of command, as well as its land-based authorities, but also to other entities, including enemy and neutral vessels or impartial humanitarian organizations capable of carrying out search and rescue operations. There is a risk, however, that those acting on behalf of a Party to the conflict in situations where such long-distance attack capabilities are deployed conclude that no measures whatsoever are ‘possible’. Such a trend, were it to materialize, would significantly imperil the system of protection set up by the Second Convention. A good faith duty remains.
1647  Lastly, climatic or temporal (day/night) considerations may also affect a Party’s capacity to carry out search and rescue operations ‘without delay’. For example, severe weather conditions may render it impossible to search for and rescue/recover the shipwrecked, wounded, sick and dead.
1648  As discussed below, the obligations of Article 18 apply only ‘after each engagement’. Thus, unlike in land warfare,[37] there is no requirement to undertake search and rescue activities during an engagement.[38] In principle, since the particular engagement will have ceased, this may limit the extent to which a Party to the conflict may invoke security or military considerations as a justification for not undertaking search and rescue activities pursuant to Article 18. The drafting history of what eventually became Article 18 must be recalled on this point: initially, Article 16(1) of the 1907 Hague Convention (X) qualified the obligation with the words ‘so far as military interests permit’. The 1947 Group of Government Experts changed this to ‘all possible measures’.[39]
1649  There are times when security considerations may, at least temporarily, make the obligation to search for the shipwrecked, wounded, sick and dead impossible. There will be cases which exceed the limits of what a Party to the conflict can be expected to do, however great the courage and devotion of its personnel. It is for this reason that the obligation in the article is not absolute and that it provides that ‘[a]fter each engagement, Parties to the conflict shall, without delay, take all possible measures’. The obligation to act without delay is strict, but the action to be taken is limited to what is feasible, in particular in the light of security considerations. The military command must judge reasonably and in good faith, based on the circumstances and the available information, what is possible and to what extent it can commit its personnel. In all cases, the operation must be conducted in full compliance with the principle of non-discrimination.
1650  It may at times be difficult to strike a balance between the acceptable risk to one’s own life (or the lives of medical or rescue personnel) and performing search and collection activities as rapidly as possible. This is recognized both in military manuals[40] and academic literature,[41] and was at issue in two judgments dealing with incidents during the Second World War.[42] If, however, it is apparent that there are shipwrecked, wounded, sick or dead persons, and if a Party to the conflict can locate and rescue them without major risk to its personnel, it would be required to do so. It is understood that any activities undertaken on the basis of Article 18 will always involve some risk to those carrying them out. Of itself, this reality may not be invoked as a justification for not undertaking them.
1651  A special agreement in the sense of Article 6 can be concluded to create sufficient legal certainty for the activities referred to in Article 18 to be undertaken without any reasonable fear of being attacked. In view of the need to act swiftly in order to successfully rescue people alive, such an agreement may be concluded orally, between commanders on the spot.[43]
1652  For submarines, however, it is acknowledged that even after the end of an engagement it may be too dangerous for them to surface. Still, it may be ‘possible’ for the submarine commander to take other measures.
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3. Temporal and geographical scope of application
1653  The obligations of Article 18(1) need to be carried out ‘after each engagement’ and ‘without delay’. In this respect, this provision differs from the corresponding provision in Article 15 of the First Convention. The latter requires that its obligations be carried out ‘[a]t all times, and particularly after an engagement’. The omission of the words ‘at all times’ from Article 18 is deliberate and reflects the fact that the conditions of warfare at sea (as compared to warfare on land) may make it impossible to carry out search and rescue activities ‘at all times’; thus the expression ‘after each engagement’ was felt to be better suited to the particular conditions at sea.[44]
1654  As is clear from the wording of Article 18(1), the obligations in this paragraph do not begin to apply while the ‘engagement’ is ongoing, although the obligations become applicable each and every time an engagement ends.
1655  After ‘each’ engagement, the obligations under Article 18 become applicable. The ordinary meaning of the term ‘engagement’ is ‘a battle between armed forces’,[45] i.e. involving the use of methods and means of warfare between military units of the Parties to the conflict.[46] The term engagement is not limited to a naval battle, but covers any kind of engagement, including from the air or from land but inflicting casualties at sea. What constitutes an engagement in any given case will remain context-specific. Thus, in each case, those acting on behalf of the Party to the conflict, each at his or her own level of decision-making, will need to make a good-faith assessment as to the moment it becomes possible to take one or more of the measures referred to in Article 18. A pause in the fighting may be sufficient to conclude that a particular engagement has ended. In essence, the obligation of Article 18 is activated ‘whenever circumstances permit’.[47]
1656  The mere fact that further combat activities might take place later or nearby does not necessarily make it ‘impossible’ to undertake some or all of the measures foreseen by Article 18(1). Ongoing, planned or anticipated military operations in the near future, in other words, do not preclude a conclusion that a particular engagement has ended for the purposes of Article 18. The clause ‘without delay’ supports this interpretation. Thus, depending on the circumstances, while an ‘engagement’ is still ongoing nearby, it may very well be ‘possible’ to take certain measures to collect and care for shipwrecked, wounded and sick persons.[48]
1657  To the extent that there is a reasonable probability of there being shipwrecked, wounded, sick and dead persons who have not yet been recovered after one search operation, the obligations of Article 18(1) remain applicable and are to be continued for as long as there is a reasonable chance of such persons being found.
1658  The geographical scope of application of Article 18(1) is not limited in any particular way but dictated by the humanitarian need it addresses. It would be inconsistent with the purpose of Article 18, which is to ensure that the wounded and sick receive the medical care their condition requires and that the shipwrecked and dead are collected, if they had to be searched for and collected only in the actual zone of combat, which in any case defies a clear-cut definition or geographical delimitation. Thus, even though the wording ‘after each engagement’ in paragraph 1 indicates that the combat zone is the primary field of application of Article 18, it reflects a particular emphasis and not a legal limitation. Therefore, the scope of application of Article 18 follows that of the Second Convention as a whole in respect of persons who are shipwrecked, wounded, sick or dead as a result of the conflict, or whose access to medical treatment or care is affected by the conflict.[49] In turn, the extent to which the Parties to the conflict must carry out the activities referred to in Article 18 in areas far removed from the combat zone depends on what is reasonably possible.
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4. The obligation to search for and collect shipwrecked, wounded and sick persons
1659  Under paragraph 1, Parties to an armed conflict are obliged to search for and collect the shipwrecked, wounded and sick. In many instances, the two obligations are complementary: in order to collect them, one must first search for them.
1660  It is therefore logical to interpret and apply in practice the seemingly distinct obligations of ‘to search for’ and ‘to collect’ as a single obligation to carry out search and rescue activities, even if the entity that engages in the search is not necessarily the entity that will engage in the rescue, for example where a remotely piloted aircraft conducts the search and then notifies other assets of the location where rescue is needed.
1661  In order to be successful at ‘collecting’ the shipwrecked, wounded and sick alive after an engagement, swift action will be of the essence. Indeed, wounded persons, in particular, may have difficulty keeping themselves afloat. Furthermore, in cold water body cooling may occur very rapidly.[50] Other perils, such as sharks, may also affect the amount of time a person is able to survive at sea.
1662  The obligation to ‘search for and collect the shipwrecked, wounded and sick’ implies that the Parties to the conflict need to have a minimum of assets, such as lifeboats, available to remove casualties as swiftly as possible to a facility where they may receive care.[51]
1663  Once collected, the wounded and sick need to receive ‘adequate care’ as soon as possible (for the discussion, see section C.6). If no such care can be provided near the place where they were rescued, Article 18 requires, where possible, that they be transported as rapidly as possible to a more secure place where they can be cared for under better and more secure conditions.[52]
1664  When collecting the shipwrecked, wounded and sick, and depending on what ‘possible measures’ can be taken, personal belongings which may assist in their identification should be collected as well.[53] Of course, in situations where the Parties lack the necessary personnel and equipment, the priority must be to save lives and to search for the dead.[54]
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5. The obligation to protect the shipwrecked, wounded and sick against pillage and ill-treatment
1665  Parties to an armed conflict are obliged to (‘shall’) protect the shipwrecked, wounded and sick against pillage and ill-treatment. The obligation to protect in Article 18(1) is closely related to the obligation to respect and protect in Article 12(1), but the former specifies some of the dangers against which the shipwrecked, wounded and sick are to be protected. This obligation requires taking action.[55]
1666  Owing to their condition, shipwrecked, wounded and sick persons are particularly vulnerable to various kinds of ill-treatment. The obligation to protect them directly addresses this vulnerability, and logically, therefore, ill-treatment should be interpreted broadly. In this light, the Parties to the conflict must take all possible measures to protect the shipwrecked, wounded and sick against any form of ill-treatment, in particular the types of conduct listed in Article 12(2) and Article 51.
1667  ‘Pillage’ can be defined as the appropriation or obtaining of public or private property by an individual without the owner’s consent, in violation of international humanitarian law.[56] The appropriation or obtaining of the property is not necessarily done by force or violence but is carried out without the owner’s implied or express consent.[57]
1668  The prohibition of pillage covers both organized pillage, such as that authorized or ordered, and individual acts.[58] Pillage can be carried out either by combatants or by civilians.
1669  It is important to distinguish between the unlawful appropriation of property that amounts to pillage, on the one hand, and the appropriation of property that is considered lawful under international humanitarian law, on the other hand. First, there is a recognized right in international armed conflict to capture as war booty any movable property belonging to the enemy State.[59] Booty of war covers all types of enemy movable public property that can be used for military operations, such as arms and munitions. If individuals were to take these types of public goods from a wounded or sick person in a situation of armed conflict at sea, it might not amount to pillage if it is handed over to the State. If such goods are taken for private use, however, that would constitute pillage and would contravene the prohibition in Article 18. Second, in the conduct of hostilities, there are situations of lawful appropriation of property that are derived from Article 23(g) of the 1907 Hague Regulations. This principle allows the appropriation of enemy property in the port of an enemy, when such appropriation is imperatively demanded by the necessities of war. Lastly, the law of armed conflict regulating both sea and air warfare recognizes the legality of certain so-called ‘measures short of attack’ that are not lawful in land warfare. In both contexts, subject to compliance with the applicable procedural conditions set down for the regulation of the exercise of such measures, capture as prize of enemy or neutral vessels or aircraft is considered lawful.[60] Other than such exceptions, appropriation of property during armed conflict without the consent of the owner constitutes pillage.[61]
1670  Article 18 refers specifically to the pillage of the shipwrecked, wounded and sick, i.e. the unlawful appropriation of their property. The taking of property belonging to shipwrecked, wounded or sick persons without their consent, unless it falls within one of the listed exceptions of legal appropriation of private and public property under the law of armed conflict, is prohibited by Article 18.
1671  Paragraph 1 does not specify against whom the shipwrecked, wounded and sick must be protected. However, in the light of the purpose of this provision, and given that the wording of paragraph 1 does not contain any restrictions, they must be protected against ill-treatment or pillage no matter by whom it is committed. Thus, Parties to an armed conflict are obliged to protect the shipwrecked, wounded and sick against ill-treatment and pillage by their own and enemy forces, as well as by civilians (e.g. pirates).
1672  As far as protection against a State’s own forces is concerned, proactive steps must be taken to prevent any form of ill-treatment or pillage, including by ensuring that armed forces receive proper instruction and by punishing abuses.
1673  Article 18(1) might require a Party to an armed conflict to guard the shipwrecked, wounded and sick in order to prevent their ill-treatment or pillage. In cases where medical personnel need to resort to the use of their weapons in order to defend the shipwrecked, wounded and sick in their charge against such acts, they do not thereby forfeit their protected status.[62]
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6. The obligation to ensure adequate care of the shipwrecked, wounded and sick
1674  On the basis of paragraph 1, Parties to an armed conflict are under an obligation to ‘take all possible measures … to ensure … adequate care’ of the shipwrecked, wounded and sick.
1675  This obligation entails taking steps to have on hand adequate medical and other supplies, as well as properly trained personnel able to provide at least a minimum level of care, such as first aid, for the shipwrecked, wounded and sick under the anticipated conditions of hostilities.[63] These persons and equipment need to be in place before the outbreak of an armed conflict; Article 18 thus requires the establishment of a medical service.[64]
1676  Sensitivity to the differing needs and capacities of men and women is also essential in planning and administering care under Article 18, so that their respective needs can be properly identified and adequately addressed.[65]
1677  When it comes to warfare at sea, only a few States have military hospital ships in the sense of Article 22.[66] However, it is worth remembering that, while it does not constitute a legal obligation, merchant vessels may be transformed into hospital ships.[67] Upon the outbreak of an armed conflict at sea, thus transforming a vessel may be one way for a Party to the conflict to fulfil the obligation of Article 12 to respect and protect the shipwrecked, wounded and sick.
1678  The shipwrecked, wounded and sick must receive the medical care and attention that their condition requires.[68] Even though medical care provided in accordance with the highest medical standards would be the most desirable, Article 18 requires that care be ‘adequate’. The exhortation to take all possible measures demands that Parties to a conflict do everything that can reasonably be expected of them in the circumstances to provide appropriate care. Given that medical care may have to be administered on a vessel, it is clear that the Convention does not impose the same standard of treatment as would be required once shipwrecked, wounded or sick persons have been transferred to a hospital or to a more secure medical facility on land. The kind of medical treatment that can reasonably be expected in a given situation depends on the availability of qualified personnel and on whether medical care is administered by doctors or paramedics or by ordinary sailors or other persons without any medical training. The absence of qualified medical personnel may not, however, justify a failure to provide any care, which must be provided with whatever resources are available.
1679  The relevant standards and procedures may change over time and there may be differences from country to country.[69] It bears repeating that the provision of care must always be in accordance with the applicable standards of medical ethics and professional medical conduct, some of which are also reflected in Article 12.[70] Some general guidance regarding these standards may be derived from universally applicable, general stipulations and documents adopted by the World Medical Association (WMA).[71] There are many studies on the type of equipment and techniques that medical personnel should use and on the procedures they should follow.
1680  In the context of warfare on land, the Eritrea-Ethiopia Claims Commission held that ‘the requirement to provide … medical care during the initial period after capture must be assessed in light of the harsh conditions on the battlefield and the limited extent of medical training and equipment available to front line troops’.[72] Caring for the wounded and sick may give rise to an array of issues. Thus, it may also be necessary to distinguish between decisions that need to be taken by a military commander, in which case the relevant point of reference will be a reasonable military commander, and decisions that need to be taken by a doctor, which are to be measured against the standard of a reasonable medical practitioner.[73] The often hostile marine environment, however, might create additional complications requiring specific decisions.
1681  Generally speaking, the obligation to care for the shipwrecked, wounded and sick also includes the provision of other – similarly essential – forms of non-medical care, such as food, drinking water, clothing, blankets (particularly relevant to protect against loss of body temperature),[74] hygiene and sanitation items. This is because, depending on the circumstances, the exclusively medical treatment of a wound or sickness may not necessarily be sufficient to ensure ‘adequate’ care. Indeed, shipwrecked, wounded and sick persons are unlikely to recover if their other basic needs are not met. The obligation is one of conduct, and therefore should be discharged with due diligence. It remains for the Party to the conflict to decide what ‘possible measures’ can be taken in this regard by each of its vessels and other assets deployed at sea: a submarine, for example, cannot be expected to carry the same amount of spare blankets as a rescue craft.
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7. The obligation to search for the dead and to prevent their being despoiled
1682  Paragraph 1 stipulates two distinct obligations regarding the dead, namely to search for them and to prevent their being despoiled. These obligations are crucial in ensuring respect for the dignity of the dead, not least because disrespect for the dead might set off a cycle of barbarity.[75] In addition, the search for and collection of the dead helps to prevent people from going ‘missing’, and is a matter of respect for the feelings of the families of the deceased. In this regard, see also Article 32 of Additional Protocol I concerning ‘the right of families to know the fate of their relatives’.[76]
1683  The two obligations laid out in paragraph 1 in relation to the dead are similar to those relating to the shipwrecked, wounded and sick.[77] In both cases, they are obligations of conduct. They may include permitting and facilitating the search for the dead by other entities, when they have the necessary capabilities. A Party may not arbitrarily withhold consent for such entities to carry out collection and evacuation activities.[78] Where the Parties lack the necessary personnel and equipment and where persons are obviously dead, priority must to be given to saving the shipwrecked, wounded and sick.[79]
1684  Although Article 18(1) merely states an obligation to search for the dead, that obligation logically also comprises their collection.[80] The obligation to search for and collect the dead is further complemented by the obligations set forth in Articles 19 and 20 to identify them and to ensure that their burial at sea is preceded by a careful examination. These measures aim to avoid people going missing. In this context, see also Articles 32–34 of Additional Protocol I.
1685  The obligations in Article 18(1) apply regardless of the Party to which the dead belong and whether or not they have taken a direct part in the hostilities. Although they do not apply as such to dead civilians (except civilians covered by Article 13 (4)–(6)), other treaty provisions and customary international law contain corresponding obligations in respect of dead civilians not covered by the Second Convention.[81]
1686  Since 1949, there have been considerable advances in underwater technology, such as remotely operated vehicles equipped with cameras, to locate and retrieve dead bodies. Furthermore, recent scientific research in the field of marine taphonomy has revealed a wide variety of factors affecting the fate of human remains in water. These factors include intrinsic ones, such as whether the person was alive or dead at the time of submergence and the type of clothing he or she was wearing, and external ones, such as ambient temperature, currents, water depth, salinity and oxygen. Lastly, depending on the circumstances, it may occur that a dead body resurfaces once it enters the bloating stage of decomposition. Thus, the fact that no bodies are seen immediately after an ‘engagement’ does not necessarily mean, as a matter of fact, that none can be recovered.[82]
1687  To the extent that a Party to the conflict has the required means at its disposal, both the technology and the knowledge described in the previous paragraph will have an impact on the interpretation of what are ‘possible measures’ in any given case with regard to the search for the dead. This would, however, be subject to the limits of reasonableness in terms of what still can be expected during a certain period of time after an engagement.
1688  As a matter of fact, subject to the availability of skilled divers, time, resources, etc., ‘possible measures’ may include entering a sunken vessel to search for, and collect, the bodies of the dead trapped inside. As a matter of international humanitarian law, however, Article 18 does not appear to go as far as requiring that. Sunken warships and other ships sunken with their crews constitute war graves, which must be respected.[83] These vessels regain their entitlement to sovereign immunity once they have sunk.[84]
1689  In addition to the obligation set out in Article 19 to collect ‘all articles of an intrinsic or sentimental value, which are found on the dead’, personal belongings that may assist in their identification should be collected, depending on what ‘possible measures’ can be taken. Of course, in the case of resource constraints, the priority must be to search for the dead.[85]
1690  Parties to the conflict must prevent the dead from being despoiled. Despoilment is a form of pillage and, as such, prohibited.[86] In the Pohl case in 1947, for example, the US Military Tribunal at Nuremberg stated that robbing the dead ‘is and always has been a crime’.[87] Moreover, it should be noted that, under Additional Protocol I, the protection of the dead goes further than their protection against despoilment: Parties to an armed conflict are obliged more broadly to ‘respect’ the dead.[88] Although not specifically provided for in Article 18, the mutilation of dead bodies is prohibited under customary international law. Separately, it is also covered by the war crime of ‘committing outrages upon personal dignity’ under the 1998 ICC Statute.[89]
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D. Paragraph 2: Arrangements for the removal of the wounded and sick from besieged or encircled areas by sea and the passage of medical and religious personnel and equipment
1691  Paragraph 2 provides for the conclusion of local arrangements for the removal – ‘by sea’ – of the wounded and sick from besieged or encircled areas, on the one hand, and for the passage of medical and religious personnel and equipment into those areas, on the other.[90] Such arrangements enable and facilitate the care of the wounded and sick, either by removing them from an area where such care is not possible or by creating the conditions that allow for the provision of that care in situ. It is thus complementary to the obligations laid out in paragraph 1.
1692  The provision stipulates that ‘the Parties to the conflict shall conclude local arrangements’ for the removal – by sea – of the wounded and sick from besieged or encircled areas. The seemingly imperative character of this obligation is qualified by the phrase ‘whenever circumstances permit’, leaving the Parties with a significant margin of discretion. It is nevertheless an urgent and important recommendation from a humanitarian point of view for the welfare and even the survival of the wounded and sick. Commanders are therefore urged to keep this possibility always in mind, to have recourse to it whenever they are able, and to bring it to the attention of their forces at all levels in the chain of command.
1693  Article 18(2) is distinct from Article 15(3) of the First Convention as it deals specifically with arrangements for the removal or passage ‘by sea’. Article 18(2) will be most relevant in situations where areas are besieged or encircled on one side (land) and border the sea on another side, or in relation to islands.[91] Evacuation by sea may be necessary and life-saving, for example when medical services on land are not functional or do not have sufficient capacity to adequately care for the wounded and sick, or when they are not accessible (because of ongoing military operations or the destruction of infrastructure).[92] It is also possible that, in the specific circumstances, evacuation by air is not feasible. Thus, Article 18(2) complements Article 15(3) of the First Convention by addressing situations where the wounded and sick can only be evacuated by sea to a place where they can receive adequate care.
1694  The concept of a ‘besieged or encircled area’ has not been defined under international humanitarian law.[93] Although not prohibited as such, it follows from various provisions of international humanitarian law, including those pertaining to the conduct of hostilities – for example, the prohibition against attacking or rendering useless objects indispensable to the survival of the civilian population or against starving the civilian population[94] – that many aspects of traditional siege warfare are no longer permissible today. Furthermore, the provisions of international law applicable to humanitarian activities also need to be considered.[95] Starvation of the civilian population as a method of warfare by depriving it of objects indispensable to its survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions, would amount to a war crime.[96] For its part, however, Article 18(2) applies regardless of the legality of the siege.
1695  Although they are not mentioned in Article 18(2), naval and/or aerial blockades raise similar humanitarian concerns to those found in a ‘besieged or encircled area’.[97] In the light of the purpose of Article 18 as a whole, it is of little relevance whether the wounded and sick are located in a ‘besieged’ or ‘encircled’ area on land or at sea, or, arguably, in an area subject to a naval blockade. Rather, what matters is whether the wounded and sick have been cut off from adequate medical or spiritual care owing to means or methods of warfare employed by the Parties to the conflict.
1696  Paragraph 2 envisages arrangements that will allow for the removal of ‘the wounded and sick’ from the area in question. It applies to wounded and sick who qualify as such under Article 12 of the Second Convention (for those who are at sea), as well as to those who qualify as such under Article 12 of the First Convention (for those who are on land, and are to be evacuated via sea). For a parallel provision for the benefit of civilians, see Article 17 in the Fourth Convention.
1697  Article 18(2), addressing the situation of wounded and sick who are at particular risk of being deprived of access to care owing to their presence in a besieged or encircled area, also envisages arrangements that will permit the passage of ‘medical and religious personnel and equipment’ on their way to that area. Therefore, belligerents are advised to allow the passage of those medical and religious personnel who are the closest to the besieged or encircled area where wounded and sick are located, or who are the best equipped to provide them with adequate care, and this irrespective of the nationality of such personnel.[98]
1698  Arrangements concluded under Article 18(2) are specifically referred to in Article 6 as an example of a ‘special agreement’ in the sense of that provision. Paragraph 2 does not clarify which form the ‘local arrangements’ may or should take. But the term is broad enough to encompass the mechanisms listed under Article 15(2) of the First Convention, namely the conclusion of an armistice or a suspension of fire, which can create the (security) conditions needed to carry out search and rescue activities.[99]
1699  Paragraph 2 covers all agreements between the Parties to an armed conflict that will bring about the necessary conditions for the removal of the wounded and sick, regardless of their precise legal qualification or designation. Indeed, by including ‘local arrangements’ in paragraph 2, the Diplomatic Conference of 1949 specifically intended to respond to practical needs and to allow even the commanders of small units to make arrangements that would enable search and rescue activities to be carried out.[100] Thus, paragraph 2 covers international treaties negotiated by plenipotentiaries and concluded in a formalized procedure between States, as well as impromptu, informal oral agreements reached by local commanders. In fact, the latter kind of informal agreements with a limited scope of application ratione loci are typical for the situation envisaged in paragraph 2, namely agreements that aim to respond to humanitarian needs as they arise in a particular location.[101]
1700  Paragraph 2 is not limited to agreements solely between the Parties to a conflict nor does it require that the Parties themselves carry out the removal of the wounded and sick. Indeed, the term ‘local arrangements’ is broad enough also to cover agreements with third parties. Thus, if Parties to an armed conflict, rather than concluding an agreement with each other, enter into an agreement with an impartial humanitarian organization (thus creating a triangular relationship) in order to facilitate the removal, exchange and/or transport of the wounded and sick, this would appear to suffice. The purpose of paragraph 2 is to enable and facilitate the evacuation of the wounded and sick so that they can be adequately cared for. It therefore covers any kind of arrangement that will help to achieve these goals. Indeed, in practice, Parties to an armed conflict may often be more inclined to contact an impartial humanitarian organization for help in evacuating the wounded and sick than to enter into direct contact with one another to make local arrangements for a ceasefire. If such agreements are to fulfil their purpose, it is important that the terms be clearly communicated to all who are in a position to comply with or violate them.
1701  Local arrangements concluded by virtue of paragraph 2 should specify the terms of the ‘removal’ of the wounded and sick. The word ‘removal’ may be understood as implying the same activities as ‘search and collection’ – the wording used in paragraph 1 – or evacuation. As to the further meaning of the word ‘removal’ in relation to the wounded and sick, this will depend on their status, and on the terms of the arrangement concluded. Once the shipwrecked, wounded and sick of a belligerent fall into enemy hands, they become prisoners of war.[102]
1702  Even though, unlike Article 15(3) of the First Convention, Article 18(2) does not mention the possibility of ‘exchange’ of the wounded, sick and shipwrecked, it is possible to organize such an exchange through an agreement. The Parties to the conflict (bilaterally or through a neutral intermediary such as the ICRC) may conclude special agreements in the sense of Article 6, which may cover other types of humanitarian activities. One prominent example was the so-called ‘Red Cross Box’, an area agreed upon by Argentina and the United Kingdom during the Falkland/Malvinas Islands conflict (1982). Even though protected zones are not mentioned in the Second Convention governing the protection of the wounded, sick and shipwrecked at sea,[103] the Parties made use of the concept to designate an area with a diameter of approximately 20 nautical miles located on the high seas north of the islands to allow their vessels to hold position and to exchange the wounded.[104]
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1 - See also the commentary on Article 12, para. 1409.
2 - For the interpretation of the term ‘at sea’ in the context of the Second Convention, see the commentary on Article 12, section D.2.
3 - See the commentary on Article 12, section F.1.c.
4 - For an explanation of this concept, see section C.1.
5 - See the commentary on Article 51, para. 3065.
6 - First Convention, Article 15 (on the reason why paragraph 2 of that article does not appear in the Second Convention, see para. 1515); Fourth Convention, Articles 16–17, it being of note that Article 16(2) explicitly refers to a requirement, within the conditions of that provision, ‘to assist the shipwrecked’, which includes the civilian casualties of a naval engagement; see Pictet (ed.), Commentary on the Fourth Geneva Convention, ICRC, 1958, p. 136; Additional Protocol I, Article 10; Additional Protocol II, Article 8; ICRC Study on Customary International Humanitarian Law (2005), Rules 109–113.
7 - Relevant sources of international law include: UN Convention on the Law of the Sea (1982), Article 98(1); SOLAS Convention (1974), Chapter V, Regulation 10(a); and Convention on Salvage (1989), Article 10. See also SAR Convention (1979, as amended in 2004). See also International Maritime Organization (IMO), Resolution A.920(22), ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’, 29 -November 2001. For further references, see the joint IMO/ICS/UNHCR leaflet, Rescue at Sea. A Guide to Principles and Practice as Applied to Refugees and Migrants, January 2015, available at www.refworld.org/docid/54b365554.html, and UNHCR, Rescue at Sea, Stowaways and Maritime Interception: Selected Reference Materials, 2nd edition, December 2011, www.refworld.org/docid/4ee087492.html.
8 - See the commentary on Article 12, section D.3.
9 - Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 303.
10 - Oxford Manual on Naval War (1913), Article 85(1): ‘After every engagement, the two belligerents, so far as military interests permit, shall take steps to look for the shipwrecked and wounded, and to protect them, as well as the dead, from pillage and ill-treatment.’
11 - Naval Expert Report of 1937, p. 18.
12 - See the commentary on Article 51, para. 3065.
13 - Report of the Conference of Government Experts of 1947, p. 83, and Minutes of the Conference of Government Experts of 1947, pp. 351–352. It is noteworthy that Article 16(2) of the Fourth Convention continues to use the term ‘as far as military considerations allow’.
14 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 201: ‘With a view to completing this Article, which imposes on the belligerents the obligation to search for the shipwrecked and the dead, new provisions have been adopted stipulating that this duty is not restricted to making such a search, but also includes the duty of taking them on board and providing them with all necessary care.’
15 - Naval Expert Report of 1937, p. 19.
16 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 39.
17 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 201.
18 - See the commentary on Article 21, para. 1872.
19 - United States, Law of War Manual, 2016, para. 7.4.3: ‘In addition to searching for, collecting, and protecting the wounded, sick, and shipwrecked directly, commanders may take other measures to fulfill this obligation. For example, commanders may request the help of civilian volunteers.’
20 - See the commentary on Article 21, para. 1863.
21 - See Koivurova, paras 1–3; Dupuy, pp. 378 and 384; Pisillo-Mazzeschi, pp. 41–46; and Hessbruegge, p. 270.
22 - See ICJ, Application of the Genocide Convention case, Judgment, 2007, para. 430, and Pisillo-Mazzeschi, p. 44.
23 - See Pisillo-Mazzeschi, pp. 44–45.
24 - See the commentary on Article 21, para. 1863.
25 - See also the commentary on Article 9, section C.4.b.
26 - For details, see section C.2.
27 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1120.
28 - United States, Law of War Manual, 2016, para. 7.4.4.
29 - Jacobson, p. 47, referring to Article 18 as ‘a strict requirement, subject only to the operational capacity of the units at the scene. … Thus, a motor torpedo boat or submarine may not have the capability to see to the wounded or ensure the safety of the shipwrecked.’
30 - United States, Law of War Manual, 2016, para. 7.4.4.2, recognizes among the ‘practical limitations’ certain situations constraining what will be interpreted as being ‘possible’: ‘In other cases, the rescue of enemy personnel may exceed the abilities of the force and its medical personnel. For example, a small patrol operating behind enemy lines or a submarine may not have the capability to receive and care for large numbers of injured personnel.’
31 - For an example from a military manual, see United States, Naval Handbook, 2007, para. 8.3, regarding submarines: To the extent that military exigencies permit, submarines are also required to search for and collect the shipwrecked, wounded, and sick following an engagement. If such humanitarian efforts would subject the submarine to undue additional hazard or prevent it from accomplishing its military mission, the location of possible survivors should be passed at the first opportunity to a surface ship, aircraft, or shore facility capable of rendering assistance. For the view that ‘this language is not a faithful reflection of the obligation contained in’ Article 18 and that the ‘use of the phrase “to the extent that military exigencies permit” … is a much broader exception to the rescue obligations than the requirement’ in Article 18, see James, J. Busuttil, ‘Naval weapons systems and the contemporary law of war’, Oxford University Press, 1998, p. 155. See also Jon L. Jacobson, ‘The Law of Submarine Warfare Today’, International Law Studies, U.S. Naval War College, Vol. 64, 1991, pp. 205–240, at 230: The only troublesome aspect of this interpretation is its lack of a direction to assess the proportionality of the importance of the ‘military exigency’ or the ‘military mission’ that will, according to the statement, authorize the departure from the general humanitarian rule of rescue. Clearly, not all military missions are so necessary or imperative that they cannot be eliminated or postponed in order to carry out the important humanitarian duty to rescue survivors. It would be better if the Handbook tied its special regard for submarines more closely to the safety of the submarine and its crew under the circumstances rather than the continuance of its military mission. See also United States, Law of War Manual, 2016, para. 7.4.3: ‘[I]f a warship is unable to collect the shipwrecked after an engagement, it might be able to alert a hospital ship in the vicinity or provide the shipwrecked with a lifeboat.’
32 - See Submarine Protocol (1936), Rule 1. In the event of an engagement with a vessel of war, the crew and passengers of merchant vessels are not only protected by Article 18 of the Second Convention, but also by Rule 2 of this Protocol. See also Roach, 2015, and Heintschel von Heinegg, 2009, pp. 353–354.
33 - See Jacobson, p. 47, referring also to torpedo boats: ‘Both of these types of war vessels have peculiar vulnerabilities, and their continued presence on the scene of a battle may jeopardize their safety. In that case, humanity yields to military necessity and torpedo boats and submarines may hastily leave the scene of a battle. Even these types of vessels must radio nearby hospital ships or other neutral ships, however.’ See also Mallison, p. 136: ‘“legal doctrine’ (including art 18 GCII) does not require submarines to attempt rescue “if either additional danger exist[s] or if the submarine’s military mission would be frustrated”’, and Roach, 2002, p. 378: “If such humanitarian efforts would subject the submarine to undue additional hazard or prevent it from accomplishing its military mission, U.S. Navy guidance calls for the location of possible survivors to be passed at the first opportunity to a surface ship, aircraft, or shore facility capable of rendering assistance.”
34 - James, J. Busuttil, Naval Weapons Systems and the Contemporary Law of War, Oxford University Press, 1998, p. 185: ‘While the physical limitations of submarines constrain the scope of their assistance … , they must do what they can and may not plead the need to fulfil their military mission as an excuse.’
35 - It is acknowledged that a submarine’s greatest strength is its stealth capabilities. Usually, therefore, a submarine will receive messages from its higher command without responding to them. Depending on the technology used, any form of transmission by the submarine, such as an electronic communication, might be subject to interception by the enemy. The same risk arises where a submarine moves closer to the surface. This would reveal the submarine’s location, and risks exposing it to a counter-attack. To the extent technology allows submarines to transmit messages without revealing their precise location, this would of course change the analysis in terms of what ‘possible measures’ it may be able to take in the circumstances.
36 - Walter L. Jacobson, p. 47: ‘must at least try to supply such materials as lifeboats, food, and water’; Mallison, p. 136: ‘[T]here is an obligation to rescue survivors when there is neither undue hazard to the submarine nor an interference with its military mission. When these conditions exist there is a particular obligation to assist survivors short of rescue, as by righting overturned lifeboats and providing rubber boats, food, and medical supplies.’; Heintschel von Heinegg, 2009, p. 355: ‘While it is clear that submarine commanders are not obliged to engage in search and rescue operations if that would imply an unreasonable risk for the ship, this does not mean that they are relieved of any obligation whatsoever. If available the survivors must be provided with the means necessary to enable them to await rescue or to reach the coast.’
37 - See also Article 16 of the Fourth Convention, in which the phrase ‘as far as military considerations allow’ qualifies what follows, i.e. ‘each Party to the conflict shall facilitate the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment’.
38 - See Article 15(1) of the First Convention. For a discussion of the balance to be struck between the acceptable level of risk to one’s own life (or the lives of medical personnel) and performing search, collection and evacuation activities as rapidly as possible during an ongoing engagement, see the commentary on Article 15 of the First Convention, para. 1488.
39 - See para. 1626.
40 - United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 13.129: ‘The parties to a conflict are also under an obligation, particularly after an engagement, to take all possible measures, consistent with their own security’, followed by a restatement of Article 18; United States, Naval Handbook, 2007, para. 11.6: ‘Following each naval engagement at sea, the belligerents are obligated to take all possible measures, consistent with the security of their forces, to search for and rescue the shipwrecked.’ The United States, Law of War Manual, 2016, para. 7.4.4.1, recognizes among the ‘practical limitations’ constraining what will be interpreted as being ‘possible’: Risk of Harm. For example, personnel performing rescue and recovery missions need not place their lives at undue risk in an effort to search for, collect, or protect the wounded, sick, shipwrecked, or dead (e.g., recovery of a body from a minefield, or entry into a disabled enemy armored vehicle that might contain unexploded ordnance or other hazards). Similarly, a commander of a naval ship need not increase the risk to his or her vessel from threats (e.g., by slowing his or her transit, or by placing his or her ship dead in the water) in order to recover shipwrecked enemy military personnel from a sunken vessel or crashed aircraft.
41 - See Astley/Schmitt, pp. 149–150: ‘Following an engagement, a commander is duty bound to rescue the survivors and pick up the deceased, regardless of their nationality, provided it is possible without hazarding the vessel.’; Fleck, p. 83: ‘[T]he obligation to act without delay is strict; but only measures within the possibilities of the parties are to be taken, for one cannot lay down an absolute rule that the commander of a warship must engage in rescue operations if, by doing so, he would expose his vessel to attack.’; McCoubrey, p. 226: ‘[Article 18] clearly does not extend to the acceptance of unreasonable risks to the rescuing units themselves.’; M.J. Gunn and Hilaire McCoubrey, ‘Medical ethics and the laws of armed conflict’, Journal of Armed Conflict Law, Vol. 3, 1998, pp. 133–161, at 143: ‘[A] warship should use all reasonable endeavours to rescue the wounded, sick and/or shipwrecked but this duty stops well short of putting the rescuing ship itself at an objectively unreasonable risk.’; and Tucker, p. 72: ‘A belligerent is required only to take all possible measures to rescue survivors consistent with his own security.’ Similarly, see Petrig, p. 347.
42 - See the commentary on Article 51, para. 3065.
43 - For details, see the commentary on Article 6, in particular section C.1 thereof.
44 - Report of the Conference of Government Experts of 1947, p. 83. Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 132. See also United States, Law of War Manual, 2016, para. 7.4.1.
45 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 473.
46 - Similarly, see the commentary on Article 30, para. 2271.
47 - See Additional Protocol II, Article 8, and ICRC Study on Customary International Humanitarian Law (2005), Rule 109, both of which use the standard of ‘whenever circumstances permit, and particularly after an engagement’.
48 - For an assessment in the context of Article 15 of the First Convention which, contrary to Article 18 of the Second Convention, contains an ‘at all times’ temporal qualification, see the commentary on Article 15 of the First Convention, para. 1488.
49 - On the territorial scope of protection conferred by the Second Convention, see the commentary on Article 12, section D.2.
50 - For details, see International Maritime Organization, ‘Guide for Cold Water Survival’, MSC.1/Circ.1185/Rev.1, 30 November 2012. See also Frank Golden and Michael Tipton, ‘Essentials of Sea Survival’, Human Kinetics, 2002.
51 - For a similar consideration with regard to the obligation to ‘ensure … adequate care’, see para. 1675.
52 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 201: ‘With a view to completing this Article, which imposes on the belligerents the obligation to search for the shipwrecked and the dead, new provisions have been adopted stipulating that this duty is not restricted to making such a search, but also includes the duty of taking them on board and providing them with all necessary care.’
53 - See the commentary on Article 19, section F.2.d.
54 - Similarly, see paras 1683 and 1689.
55 - United States, Law of War Manual, 2016, para. 7.4.2 : ‘If practicable, affirmative measures (including, in some cases, the use of force) must be taken to protect the wounded, sick, and shipwrecked, from pillage or ill-treatment by any person, whether military or civilian, seeking to harm them.’
56 - The ICTY discussed the definition of plunder or pillage in the following judgments: Delalić Trial Judgment, 1998, paras 587–591; Simić Trial Judgment, 2003, para. 99; Kordić and Čerkez Appeal Judgment, 2004, paras 79–84; Naletilić and Martinović Trial Judgment, 2003, paras 612–615; and Hadžihasanović Trial Judgment, 2006, paras 49–51. The SCSL discussed the war crime of pillage in e.g. the following cases: Brima Trial Judgment, 2007, para. 754; Fofana and Kondewa Trial Judgment, 2007, para. 160; and Taylor Trial Judgment, 2012, para. 452.
57 - ICTY, Delalić Trial Judgment, 1998, para. 591. See also France, Permanent Military Tribunal at Metz, Bommer case, Judgment, 1947. During the negotiation of the elements of the war crime of pillage under the 1998 ICC Statute, States rejected the element of ‘force’, concentrating instead on the ‘absence of consent’. See the commentary on Article 33 of the Fourth Convention.
58 - See ICTY, Delalić Trial Judgment, 1998, para. 590.
59 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 49: ‘The parties to the conflict may seize military equipment belonging to an adverse party as war booty.’ See also Articles 33 and 35 of the First Convention, and Article 18(1) of the Third Convention
60 - A full overview of these measures is outside the scope of this commentary. For examples of rules regulating a ‘measure short of attack’, see Manual on International Law Applicable to Air and Missile Warfare (2009), Section U, and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 135–158.
61 - This presupposes, of course, that a link can be established between the act of pillage and the armed conflict. This nexus is what distinguishes pillage from theft in domestic law.
62 - See the commentary on Article 35, section D.
63 - For a similar consideration with regard to the obligation to ‘search for and collect’, see para. 1662.
64 - Similarly, see the commentary on Article 12, para. 1434.
65 - For further elaboration on these issues, see the commentary on Article 12, paras 1471– 1483.
66 - See the commentary on Article 22, footnote 4.
67 - See ibid. para 1945, as well as Article 33.
68 - See the commentary on Article 12, para. 1428.
69 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 106.
70 - See also Additional Protocol I, Article 16(1)–(2); ICRC Study on Customary International Humanitarian Law (2005), Rule 26; and Bothe/Partsch/Solf, p. 108, para. 2.3 (end).
71 - Instruments concerning medical ethics in times of armed conflict, especially: the WMA’s Regulations in Times of Armed Conflict (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, as amended or revised in 1957, 1983, 2004, 2006 and 2012); Rules Governing the Care of Sick and Wounded, Particularly in Time of Conflict (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, edited and amended in 1957 and 1983); Standards of Professional Conduct regarding the Hippocratic Oath and its modern version, the Declaration of Geneva, and its supplementary International Code of Medical Ethics (adopted by the 3rd WMA General Assembly, London, England, October 1949, as amended in 1968, 1983 and 2006). See also ICRC, Health Care in Danger: The Responsibilities of Health-Care Personnel Working in Armed Conflicts and Other Emergencies, ICRC, Geneva, 2012, pp. 55–62, and Ethical Principles of Health Care in Times of Armed Conflict and Other Emergencies, ICRC, Geneva, 2015.
72 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 69–70. Ethiopia had alleged that Eritrea had ‘failed to provide necessary medical attention to Ethiopian POWs [prisoners of war] after capture and during evacuation, as required under customary international law reflected in Geneva Conventions I (Article 12) and III (Articles 20 and 15)’. Ethiopia further argued that ‘[m]any Ethiopian declarants testified that their wounds were not cleaned and bandaged at or shortly after capture, leading to infection and other complications’. Eritrea responded that ‘its troops provided rudimentary first aid as soon as possible, including in transit camps’. While the Commission came to the general conclusion that there was no violation, logistical and resource constraints may not excuse a failure to provide even basic care.
73 - Israel, Supreme Court sitting as High Court of Justice, Physicians for Human Rights v. Prime Minister of Israel and others, Judgment, 2009, para. 23: The respondents said that on 5 January 2009 a special health operations room was established, under the command of an officer with the rank of major, who is responsible for … coordinating the evacuation of the wounded and the dead from the area where fighting is taking place. Professional matters that arise in the operations room are decided by a doctor, who is an officer with the rank of lieutenant-colonel.
74 - For further information, see International Maritime Organization, ‘Guide for Cold Water Survival’, MSC.1/Circ.1185/Rev.1, 30 November 2012, pp. 7–10: ‘Treatment of people recovered from cold water’.
75 - See also Articles 19 and 20.
76 - See also ICRC Study on Customary International Humanitarian Law (2005), Rule 117, and 28th International Conference of the Red Cross and Red Crescent, 2003, Resolution 1, in particular its ‘Final Goals’ 1.2. (‘ascertain the fate of missing persons’) and 1.4 (‘manage human remains and information on the dead’). For further information, see ICRC, The Missing and their Families: Documents of Reference, ICRC, Geneva, 2004.
77 - This is the case notwithstanding the slight difference in wording: Article 18(1) uses ‘prevent’ instead of ‘protect’ in relation to the dead.
78 - See the commentary on Article 9, section C.4.b.
79 - Similarly, see paras 1664 and 1689.
80 - Similarly, albeit in relation to non-international armed conflict, see Sivakumaran, pp. 280–281. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 112.
81 - See Fourth Convention, Article 16; Additional Protocol I, Articles 33 and 34; Additional Protocol II, Article 8; and ICRC Study on Customary International Humanitarian Law (2005), Rules 112–113.
82 - For literature on this topic, see Ronald F. Becker, Underwater Forensic Investigation. 2nd edition, CRC Press, Boca Raton, 2013; Sarah T.D. Ellingham; P. Perich; Morris Tidball-Binz, ‘The Fate of Human Remains in a Maritime Context and Feasibility for Forensic Humanitarian Action to Assist in Their Recovery and Identification: A Review of the Literature’, Forensic Science International, Special Edition: Humanitarian Forensic Action (forthcoming 2017); William D. Haglund, ‘Disappearance of Soft Tissue and the Disarticulation of Human Remains from Aqueous Environments’, Journal of Forensic Science, Vol. 38, No. 4, 1993, pp. 806–815; T. Kahana et al., ‘Marine taphonomy: adipocere formation in a series of bodies recovered from a single shipwreck’, Journal of Forensic Science, Vol. 44, No. 5, 1999, pp. 897–901; Marcos Mateus and Vasco Vieira, ‘Study on the postmortem submersion interval and accumulated degree days for a multiple drowning accident’, Forensic Science International, Vol. 238, 2014, pp. E15–E19; Robert Gordon Teather, Encyclopedia of Underwater Investigations, Best Publishing Co., Flagstaff, Arizona, 1994; Calle Winskog, ‘Underwater disaster victim identification: the process and the problems’, Forensic Science, Medicine, and Pathology, Vol. 8 No. 2, 2012, pp. 174–178.
83 - See also the commentary on Article 20, para. 1820.
84 - See Roach, 2015, in particular para. 25. For literature on this topic, which is outside the scope of this commentary except as noted, see also Mariano J. Aznar-Gómez, ‘Legal Status of the Sunken Warships “Revisited”’, Spanish Yearbook of International Law, Vol. 9, 2003, pp. 61–101; David J. Bederman, ‘Rethinking the Status of Sunken Warships’, Ocean Development and International Law, Vol. 31, 2000, pp. 97–125; Craig Forrest, ‘An International Perspective on Sunken State Vessels as Underwater Cultural Heritage’, Ocean Development and International Law, Vol. 34, 2003, pp. 41–57; Jason R. Harris, ‘The Protection of Sunken Warships as Gravesites at Sea’, Ocean and Coastal Law Journal, Vol. 7, No. 1, 2001, pp. 75–130; Jason R. Harris, ‘Protecting Sunken Warships as Objects Entitled to Sovereign Immunity’, University of Miami Inter-American Law Review, Vol. 33, No. 1, 2002, pp. 101–125; Peter Hershey, ‘Regulating Davy Jones: The Existing and Developing Law Governing the Interaction with and Potential Recovery of Human Remains at Underwater Cultural Heritage Sites’, Journal of Environmental Law and Litigation, Vol. 27, 2002, pp. 363–400; J. Ashley Roach, ‘Sunken warships and military aircraft’, Marine Policy, Vol. 20, No. 4, 1996, pp. 351–354; and Valentina Vadi, ‘War, Memory, and Culture: The Uncertain Legal Status of Historic Sunken Warships under International Law’, Tulane Maritime Law Journal, Vol. 37, 2013, pp. 333–378. See also a resolution adopted by the Institut de Droit International in 2015 and entitled ‘The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law’, available at http://justitiaetpace.org/resolutions_chrono.php?start=2009&end=2015, and Institut de Droit International, ‘The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law’, Natalino Ronzitti (Rapporteur), 9th Commission, Yearbook of the Institute of International Law, Vol. 74, 2011, pp. 152–154.
85 - Similarly, see paras 1664 and 1683.
86 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 52.
87 - United States, Military Tribunal at Nuremberg, Pohl case, Judgment, 1947, p. 996.
88 - See Additional Protocol I, Article 34, and Petrig, pp. 350–351.
89 - ICRC Study on Customary International Humanitarian Law (2005), Rule 113; ICC Elements of Crimes (2002), Definition of the war crime of outrages upon personal dignity (ICC Statute (1998), fn. 49 relating to Article 8(2)(b)(xxi)). For a commentary on this war crime, see Dörmann, p. 314, and Patricia Viseur Sellers and Elizabeth Bennion, ‘Article 8’, in Triffterer/Ambos, paras 614–651.
90 - See also First Convention, Article 15, Fourth Convention, Article 17, and Third Convention, Articles 19 and 20, which specify conditions for the evacuation of wounded and sick prisoners of war.
91 - As was noted at the 17th International Conference of the Red Cross (Stockholm, 1948), which adopted the draft convention that was subsequently submitted to the 1949 Diplomatic Conference. See Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, Geneva, 1960, p. 134.
92 - This was already pointed out at the 1949 Diplomatic Conference: ‘The experience gained during the last war has demonstrated the usefulness of the possibility of evacuating the wounded and sick from a besieged or encircled zone by sea, as well as carrying reinforcements of personnel and medical stores by sea to that zone. New provisions make this possible by local agreement.’ See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 201.
93 - Although Article 27 of the 1907 Hague Regulations refers to ‘sieges’, the term is not defined. A siege is a concept confined to land warfare. The equivalent in a naval or aerial context would be a blockade. For a restatement of the rules applicable to a naval blockade, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 93–104; for a restatement of the rules applicable to an aerial blockade, see Manual on International Law Applicable to Air and Missile Warfare (2009), Rules 147–159. In the latter, Rule 147 defines an ‘aerial blockade’ as ‘a belligerent operation to prevent aircraft (including [Unmanned Aerial Vehicles/Unmanned Combat Aerial Vehicles] from entering or exiting specified airfields or coastal areas belonging to, occupied by, or under the control of the enemy’. The term ‘encircled area’ only appears in the Geneva Conventions; see Article 18(2) of the Second Convention and Article 17 of the Fourth Convention.
94 - See Additional Protocol I, Article 54(1)–(2), and ICRC Study on Customary International Humanitarian Law (2005), Rules 54 and 53.
95 - See Article 9.
96 - ICC Statute (1998), Article 8(2)(b)(xxv). On starvation, see Michael Cottier, ‘Article 8’, in Triffterer/Ambos, paras 758–765. See also Dinstein, 2010, pp. 220–223.
97 - In addition to the above-mentioned rules of international humanitarian law relevant to assessing the legality of sieges, naval blockades are subject to specific limitations; see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Part IV, Section II, paras 93–104. A naval blockade can be defined as follows: ‘Blockade is the naval operation (of surface ships and, with qualifications, aircraft) denying to vessels and aircraft of all nations ingress and egress to and from the coast of an enemy or port thereof’; see Daniel P. O’Connell, The International Law of the Sea, I.A. Shearer (ed.), Vol. II, Oxford University Press, 1984. For more on naval blockades, see also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Part IV, Section II, and commentary; Michael G. Fraunces, ‘The International Law of Blockade: New Guiding Principles in Contemporary State Practice’, Yale Law Journal, Vol. 101, No. 4, January 1992, pp. 893–918; Louise Doswald-Beck, ‘San Remo Manual on International Law Applicable to Armed Conflict at Sea’, International Review of the Red Cross, Vol. 35, No. 309, 1995, pp. 583–594; Wolff Heintschel von Heinegg, “Naval Blockade”, in Michael N. Schmitt (ed.), International Law Across the Spectrum of Conflict: Essays in Honour of Professor L.C. Green On the Occasion of His Eightieth Birthday, International Law Studies, U.S. Naval War College, Vol. 75, pp. 203–230; Wolff Heintschel von Heinegg, ‘Blockade’, version of October 2015, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, http://www.mpepil.com; United Nations, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, September 2011, Appendix I: The Applicable International Legal Principles, paras 16–73; and The Independent Public Commission to Examine the Maritime Incident of 31 May 2010 (‘The Turkel Commission’), Report, Part I, pp. 38–45.
98 - According to Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 136, The besieging Power must either permit the passage of enemy personnel of the same nationality as the wounded requiring attention or, if such personnel are not available or other circumstances make it more desirable, send members of its own personnel into the besieged place, in conformity with the general principles of the Convention. In the latter case, the status of the besieger’s personnel and the conditions of their stay must then be specified in the arrangement concluded. In any event, the conditions must not be less favourable than those provided in the Convention (see Article 6). With regard to religious personnel, Pictet held that ‘the most elementary sentiments of humanity and respect for the individual demand that they should always be allowed free access.’
99 - For an analysis of the terms ‘armistice’ and ‘suspension of fire’, see the commentary on Article 15 of the First Convention, para. 1516.
100 - In relation to Article 15 of the First Convention, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 154. In relation to Article 12 of the Fourth Convention, see Pictet (ed.), Commentary on the Fourth Geneva Convention, ICRC, 1958, p. 139.
101 - See Germany, Military Manual, 1992, p. 238. Dinstein notes that: ‘The area of application of a limited armistice shall be defined as precisely as possible. If, for instance, wounded persons are to be recovered it must be clear if and up to what line bombardments further to the rear remain permissible. Sometimes it will also be necessary to coordinate the utilization of the airspace and the passage of ships.’ Yoram Dinstein, War, Aggression and Self-Defence, 5th edition, Cambridge University Press, 2011, p. 52. This is also evidenced by the fact that the historical predecessor of paragraph 2, namely Article 3, paragraph 2, of the 1929 Geneva Convention on the Wounded and Sick, spoke of the conclusion of a ‘local armistice’; see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 154.
102 - See Article 16 of the Second Convention and Article 14 of the First Convention. See also Articles 19 and 20 of the Third Convention.
103 - In contrast, such protected zones are provided for in the First Convention (Article 23) and Fourth Convention (Articles 14 and 15).
104 - See Sylvie-Stoyanka Junod, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1985, p. 26 (a ‘neutral zone at sea’); Yves Sandoz, ‘The establishment of safety zones for persons displaced within their country of origin’, in Najeeb Al-Nauimi and Richard Meese (eds), International Legal Issues Arising under the United Nations Decade of International Law, Martinus Nijhoff Publishers, The Hague, 1995, pp. 899–927, at 915–916 (‘In purpose and use, the Red Cross Box was therefore rather like a hospital zone as provided for in Article 23 of the First Convention for war on land.’); and United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 372, fn. 130. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 160: ‘The parties to the conflict may agree, for humanitarian purposes, to create a zone in a defined area of the sea in which only activities consistent with those humanitarian purposes are permitted.’