Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 4 : Field of application
Text of the provision*
(1) In case of hostilities between land and naval forces of Parties to the conflict, the provisions of the present Convention shall apply only to forces on board ship.
(2) Forces put ashore shall immediately become subject to the provisions 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.
* Paragraph numbers have been added for ease of reference.
Reservation or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Paragraph 1: Hostilities between land and naval forces
  • D. Paragraph 2: Forces put ashore
    A. Introduction
    935  As their respective titles indicate, the First Convention pertains to ‘the wounded and sick in armed forces in the field’ and the Second Convention pertains to ‘wounded, sick and shipwrecked members of armed forces at sea’. Thus, both Conventions seek to protect the same category of persons, i.e. members of the armed forces, along with other persons referred to in Article 13, when they are wounded, sick or, in the case of the Second Convention, shipwrecked. Although not mentioned in their titles, both Conventions also protect the same persons when they are dead. In addition, both Conventions protect persons not or no longer taking a direct part in the hostilities during non-international armed conflict.[1]
    936  The First and Second Conventions contain similar principles and rules, the latter adapting the principles and rules of land warfare to the particular circumstances of maritime warfare. What sets the two Conventions apart is the location of the persons it protects: on land versus at sea. For the interpretation of the term ‘at sea’ for the purpose of assessing where persons protected by the Second Convention are located, see the commentary on Article 12, section D.2.
    937  The non-authentic marginal title of Article 4 is ‘Field of application’.[2] However, Article 4 does not address all the questions related to the scope of application of the Second Convention. It only regulates two specific scenarios.
    938  First, Article 4(1) provides that, ‘in case of hostilities between land and naval forces’, the forces on board ship have to apply the Second Convention, while the forces on land have to apply the First Convention.
    939  Second, Article 4(2) stipulates that once ‘forces [are] put ashore’, they cease to be ‘subject to’ the Second Convention, and are ‘immediately’ subject to the First Convention.
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    B. Historical background
    940  The first paragraph of Article 4 is based on Article 22 of the 1907 Hague Convention (X), which reads: ‘In the case of operations of war between the land and sea forces of belligerents, the provisions of the present Convention do not apply except between the forces actually on board ship.’[3]
    941  The second paragraph of Article 4 is the issue of a proposal made by the Commission of Naval Experts convened by the ICRC in 1937 to review the 1907 Hague Convention (X).[4]
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    C. Paragraph 1: Hostilities between land and naval forces
    942  Article 4(1) stipulates that, ‘in case of hostilities between land and naval forces’, the Second Convention ‘shall apply only’ to ‘forces on board ship’. In such a scenario, the purpose of Article 4 is to provide for a division of responsibility between the various parts of the armed forces of a Party to the conflict, i.e. those on land versus those at sea. For the latter, the Second Convention ‘shall apply’.
    943  The ordinary meaning of the word ‘apply’ is ‘be relevant’.[5] The drafters’ intention with regard to the meaning of this provision can be deduced from the fact that initially its title was ‘Obligatory character’.[6] Thus, Article 4(1) identifies who bears the primary responsibility for complying with the Second Convention; it does not purport to identify who is protected by it. Indeed, some of the persons protected by the Second Convention, such as the shipwrecked, will not be found ‘on board ship’. Articles 23 and 27(2) confirm this understanding in that they protect persons and objects on land.
    944  Article 4(1) applies only to hostilities ‘between land and naval forces’. These terms are to be understood in their plain sense, as ‘armed forces on land’ and ‘armed forces at sea’. Logically, this interpretation can be extended to the armed forces operating in the airspace above land and above the sea. The terms ‘land’ and ‘naval’ forces, in other words, do not refer to particular branches of the armed forces. The criterion is geographic: members of the infantry must apply the Second Convention when at sea and members of the navy must apply the First Convention when on land.
    945  The Geneva Conventions contain no definition of the term ‘hostilities’. The term was also left undefined in Article 51(3) of Additional Protocol I dealing with the notion of direct participation of civilians in hostilities. In its 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, and within the specific context of Article 51(3) of the Protocol, the ICRC observed that ‘the concept of “hostilities” refers to the (collective) resort by the parties to the conflict to means and methods of injuring the enemy’.[7]
    946  Article 4(1) specifies that, in case of hostilities between land and naval forces of Parties to the conflict, the Second Convention applies ‘only’ to forces on board ship.[8] This is not the full picture, however: although ‘forces’ are singled out for practical reasons as the primary agents responsible for ensuring compliance, ultimate responsibility under international law lies with the Party to the conflict. It is that Party which must answer for any failure of its ‘forces’ to fulfil their obligations and which must take the necessary measures to ensure that each of the four Conventions are observed, regardless of which forces are mostly concerned by, or in a position of, doing so. Hence, each Party to the conflict remains fully responsible for the acts and omissions of its forces and is, consequently, bound to ensure that these forces actually take the necessary measures of execution.[9]
    947  The forces which need to implement the Second Convention are to be understood in ‘the broadest possible sense’ as (i) all categories of persons referred to in Article 13, as long as they are not wounded, sick or shipwrecked themselves, i.e. as long as they are able-bodied; and (ii) the medical, religious and hospital personnel referred to in Articles 36 and 37.[10]
    948  The First Convention does not contain a parallel provision. Logically, in case of hostilities between land and naval forces of Parties to the conflict, the First Convention applies only to the forces on land.
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    D. Paragraph 2: Forces put ashore
    949  Article 4(2) is inspired by the same logic as Article 4(1) but makes it more explicit: ‘[f]orces put ashore shall immediately become subject to the provisions of the [First Convention]’, regardless of whether there are hostilities taking place between land and naval forces.
    950  It is immaterial in which circumstances the forces are ‘put ashore’, the term ‘ashore’ to be interpreted in its ordinary meaning as ‘on land as opposed to at sea’.[11]
    951  The provision that forces put ashore become ‘subject to’ the First Convention implies that forces at sea remain ‘subject to’ the Second Convention. This provision thus indicates who needs to comply with which Convention and who is protected by which Convention in view of their being wounded, sick or shipwrecked. This remains without prejudice to the fact that other Conventions may also apply.
    952  When it comes to the protection conferred on specific categories of persons, the general principle of Article 4(2) is applied in Articles 20(2) and 37(3) to dead persons and retained personnel, respectively, when they are landed.[12]
    953  There is one exception to the general principle of Article 4(2): religious, medical and hospital personnel of hospital ships and their crews covered by Article 36 are protected ‘during the time they are in the service of the hospital ship’, and remain so under the Second Convention when they go ashore.[13]

    1 - See common Article 3.
    2 - On the status of the marginal titles, see Introduction, para. 27.
    3 - See Proceedings of the Hague Peace Conference of 1907, Vol. III, pp. 311–312: ‘Article 22 is new. It presents no difficulties. In the case of military operations taking place at the same time on land and sea, the new Convention must be applied to the forces afloat, and the Convention of 1906 to the forces operating on land.’ A similar rule can be found in Article 87 of the 1913 Oxford Manual of Naval War: ‘In the case of operations of war between the land and sea forces of belligerents, the provisions of the present regulations on hospital assistance do not apply except between the forces actually on board ship.’
    4 - See Naval Expert Report of 1937, draft article 26(2): ‘Any forces landed shall at once become subject to the provisions of the Geneva Convention of July 27th, 1929.’
    5 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 63.
    6 - Final Record of the Diplomatic Conference of Geneva, Vol. II-A, p. 138
    7 - ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, by Nils Melzer, ICRC, Geneva, 2009, p. 43.
    8 - For an interpretation of the term ‘ship’, see the commentary on Article 22, section C.1.a.
    9 - For details, see the commentary on Article 46, para. 2824.
    10 - Final Record of the Diplomatic Conference of Geneva, Vol. II-A, pp. 138 and 200.
    11 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 76.
    12 - See the commentaries on Article 20, section D, and Article 37, para. 2536.
    13 - See the commentary on Article 36, section C.2.a.