Practice Relating to Rule 29. Medical Transports

Geneva Convention I
Article 35 of the 1949 Geneva Convention I provides:
Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units.
Should such transports or vehicles fall into the hands of the adverse Party, they shall be subject to the laws of war, on condition that the Party to the conflict who captures them shall in all cases ensure the care of the wounded and sick they contain.
The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 35.
Article 20 of the Convention provides:
Hospital ships entitled to the protection of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, shall not be attacked from the land. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 20.
Geneva Convention II
Article 22 of the 1949 Geneva Convention II provides:
Military hospital ships, that is to say, ships built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed.
The characteristics which must appear in the notification shall include registered gross tonnage, the length from stem to stern and the number of masts and funnels. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 22.
Article 24 of the Convention provides:
Hospital ships utilized by National Red Cross Societies, by officially recognized relief societies or by private persons shall have the same protection as military hospital ships and shall be exempt from capture, if the Party to the conflict on which they depend has given them an official commission and in so far as the provisions of Article 22 concerning notification have been complied with.
These ships must be provided with certificates from the responsible authorities, stating that the vessels have been under their control while fitting out and on departure. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 24.
Article 25 of the Convention provides:
Hospital ships utilized by National Red Cross Societies, officially recognized relief societies, or private persons of neutral countries shall have the same protection as military hospital ships and shall be exempt from capture, on condition that they have placed themselves under the control of one of the Parties to the conflict, with the previous consent of their own governments and with the authorization of the Party to the conflict concerned, in so far as the provisions of Article 22 concerning notification have been complied with. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 25.
Article 26 of the Convention provides:
The protection mentioned in Articles 22, 24 and 25 shall apply to hospital ships of any tonnage and to their lifeboats, wherever they are operating. Nevertheless, to ensure the maximum comfort and security, the Parties to the conflict shall endeavour to utilize, for the transport of wounded, sick and shipwrecked over long distances and on the high seas, only hospital ships of over 2,000 tons gross. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 26.
Article 27 of the Convention provides:
Under the same conditions as those provided for in Articles 22 and 24, small craft employed by the State or by the officially recognized lifeboat institutions for coastal rescue operations, shall also be respected and protected, so far as operational requirements permit.
The same shall apply so far as possible to fixed coastal installations used exclusively by these craft for their humanitarian missions. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 27.
Article 28 of the Convention provides:
Should fighting occur on board a warship, the sick-bays shall be respected and spared as far as possible. Sick-bays and their equipment shall remain subject to the laws of warfare, but may not be diverted from their purpose so long as they are required for the wounded and sick. Nevertheless, the commander into whose power they have fallen may, after ensuring the proper care of the wounded and sick who are accommodated therein, apply them to other purposes in case of urgent military necessity. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 28.
Article 29 of the Convention provides: “Any hospital ship in a port which falls into the hands of the enemy shall be authorized to leave the said port.” 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 29.
Article 30 of the Convention provides:
The vessels described in Articles 22, 24, 25and 27 shall afford relief and assistance to the wounded, sick and shipwrecked without distinction of nationality.
The High Contracting Parties undertake not to use these vessels for any military purpose.
Such vessels shall in no wise hamper the movements of the combatants.
During and after an engagement, they will act at their own risk. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 30.
Article 31 of the Convention provides:
The Parties to the conflict shall have the right to control and search the vessels mentioned in Articles 22, 24, 25 and 27. They can refuse assistance from these vessels, order them off, make them take a certain course, control the use of their wireless and other means of communication, and even detain them for a period not exceeding seven days from the time of interception, if the gravity of the circumstances so requires.
They may put a commissioner temporarily on board whose sole task shall be to see that orders given in virtue of the provisions of the preceding paragraph are carried out.
As far as possible, the Parties to the conflict shall enter in the log of the hospital ship, in a language he can understand, the orders they have given the captain of the vessel.
Parties to the conflict may, either unilaterally or by particular agreements, put on board their ships neutral observers who shall verify the strict observation of the provisions contained in the present Convention. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 31.
Article 32 of the Convention provides: “Vessels described in Articles 22, 24, 25 and 27 are not classed as warships as regards their stay in a neutral port.” 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 32.
Article 33 of the Convention provides: “Merchant vessels which have been transformed into hospital ships cannot be put to any other use throughout the duration of hostilities.” 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 33.
Article 34 of the Convention provides:
The protection to which hospital ships and sick-bays are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming in all appropriate cases a reasonable time limit, and after such warning has remained unheeded.
In particular, hospital ships may not possess or use a secret code for their wireless or other means of communication. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 34.
Article 35 of the Convention provides:
The following conditions shall not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them:
(1) The fact that the crews of ships or sick-bays are armed for the maintenance of order, for their own defence or that of the sick and wounded.
(2) The presence on board of apparatus exclusively intended to facilitate navigation or communication.
(3) The discovery on board hospital ships or in sick-bays of portable arms and ammunition taken from the wounded, sick and shipwrecked and not yet handed to the proper service.
(4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the crews extend to the care of wounded, sick or shipwrecked civilians.
(5) The transport of equipment and of personnel intended exclusively for medical duties, over and above the normal requirements. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 35.
Article 38 of the Convention provides:
Ships chartered for that purpose shall be authorized to transport equipment exclusively intended for the treatment of wounded and sick members of armed forces or for the prevention of disease, provided that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter. The adverse Power shall preserve the right to board the carrier ships, but not to capture them or seize the equipment carried.
By agreement amongst the Parties to the conflict, neutral observers may be placed on board such ships to verify the equipment carried. For this purpose, free access to the equipment shall be given. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 38.
Geneva Convention IV
Article 21 of the 1949 Geneva Convention IV provides:
Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases, shall be respected and protected in the same manner as the hospitals provided for in Article 18, and shall be marked, with the consent of the State, by the display of the distinctive emblem provided for in Article 38 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. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 21.
Additional Protocol I
Article 8 of Additional Protocol I provides: “For the purposes of this Protocol: … i) ‘medical ships and craft’ means any medical transports by water.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 8(i).
Article 22 of the Protocol provides:
1. The provisions of the Conventions relating to:
a) vessels described in Articles 22, 24, 25 and 27 of the [1949 Geneva Convention II],
b) their lifeboats and small craft,
c) their personnel and crews, and
d) the wounded, sick and shipwrecked on board,
shall also apply where these vessels carry civilian wounded, sick and shipwrecked who do not belong to any of the categories mentioned in Article 13 of the [1949 Geneva Convention II]. Such civilians shall not, however, be subject to surrender to any Party which is not their own, or to capture at sea. If they find themselves in the power of a Party to the conflict other than their own, they shall be covered by the Fourth Convention [1949 Geneva Convention IV] and by this Protocol.
2. The protection provided by the Conventions to vessels described in Article 25 of the [1949 Geneva Convention II] shall extend to hospital ships made available for humanitarian purposes to a Party to the conflict:
a) by a neutral or other State which is not a Party to that conflict; or
b) by an impartial international humanitarian organization,
provided that, in either case, the requirements set out in that Article are complied with. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 22.
Article 23 of the Protocol provides:
1. Medical ships and craft other than those referred to in Article 22 of this Protocol and Article 38 of the [1949 Geneva Convention II] shall, whether at sea or in other waters, be respected and protected in the same way as mobile medical units under the [1949 Geneva] Conventions and this Protocol. Since this protection can only be effective if they can be identified and recognized as medical ships or craft, such vessels should be marked with the distinctive emblem and as far as possible comply with the second paragraph of Article 43 of the [1949 Geneva Convention II].
2. The ships and craft referred to in paragraph 1 shall remain subject to the laws of war. Any warship on the surface able immediately to enforce its command may order them to stop, order them off, or make them take a certain course, and they shall obey every such command. Such ships and craft may not in any other way be diverted from their medical mission so long as they are needed for the wounded, sick and shipwrecked on board.
3. The protection provided in paragraph 1 shall cease only under the conditions set out in Articles 34 and 35 of the [1949 Geneva Convention II]. A clear refusal to obey a command given in accordance with paragraph 2 shall be an act harmful to the enemy under Article 34 of the [1949 Geneva Convention II].
4. A Party to the conflict may notify any adverse Party as far in advance of sailing as possible of the name, description, expected time of sailing, course and estimated speed of the medical ship or craft, particularly in the case of ships of over 2,000 gross tons, and may provide any other information which would facilitate identification and recognition. The adverse Party shall acknowledge receipt of such information. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 23.
Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including “attack on and destruction of hospital ships”. 
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.
Hague Rules of Air Warfare
Article 25 of the 1923 Hague Rules of Air Warfare provides: “In bombardment by aircraft, all necessary steps must be taken by the commander to spare as far as possible … hospital ships … provided [they] are not at the time used for military purposes.” 
Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Part II, drafted by a Commission of Jurists, The Hague, December 1922–February 1923, Article 25.
San Remo Manual
Paragraph 47(a), (b) and (c)(ii) of the 1994 San Remo Manual includes hospital ships, small craft used for coastal rescue operations and other medical transports, as well as vessels engaged in humanitarian missions, among the classes of enemy vessels exempt from attack. Paragraph 48 of the manual lists the conditions of exemption as follows: such vessels must be “innocently employed in their normal role”; they must “submit to identification and inspection when required”; and they must not “intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required”. 
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, §§ 47(a), (b) and (c)(ii) and 48.
Australia
Australia’s LOAC Manual (2006) states:
6.44 Classes of vessels exempt from attack. The following classes of enemy vessels are exempt from attack:
• hospital ships;
• small craft used for coastal rescue operations and other medical transports;
6.45 [Such] vessels are exempt from attack only if they:
• are innocently employed in their normal role,
• submit to identification and inspection when required, and
• do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.
9.78 … [H]ospital ships … must be respected and protected at all times and must not be attacked. …
13.30 Among other war crimes generally recognised as forming part of the customary LOAC are:
• attacking a properly marked hospital ship. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 6.44–6.45, 9.78 and 13.30; see also § 5.41.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Cameroon
Cameroon’s Instructor’s Manual (2006) states:
352.2 – Special protection: (persons and objects specially protected.)
Certain categories of persons and objects benefit from special protection under the law of armed conflict and international humanitarian law both in the civilian domain and in the military domain.
352.20 Military medical services
Hospital ships (measuring more than 2000 gross tonnes) are charged with providing assistance to the victims of war [and are specially protected]. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.2 and p. 93, § 352.20; see also p. 135, § 412.20.
The manual also states: “The medical personnel on hospital ships (as well as their equipment) must not be captured during the entire time that they are in service on these ships.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 122, § 403; see also p. 123, § 403 and p. 165, § 463.
Canada
Canada’s LOAC Manual (1999) states: “Medical transports of all types (land, sea, air) are protected and must not be attacked.”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-9, §§ 92; see also p. 9-4, §§ 35–36.
The manual qualifies “attacking a properly marked hospital ship” as a war crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 21(e).
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. Medical transports of all types (land, sea and air) are protected and must not be attacked.
2. Medical transports should not be armed (i.e., crew-served weapons) because of the danger that they may be mistaken as fighting vehicles. Medical personnel in the medical transports can, however, retain their personal weapons. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 448.1–2.
In its chapter on the treatment of the wounded, sick and shipwrecked, the manual states:
918. Protection of medical establishments, transport, aircraft and hospital ships
1. Medical establishments on land, hospital ships, medical aircraft, and medical transports must be respected and protected at all times and must not be attacked. If they are used for purposes hostile to the adverse party and outside their humanitarian purpose, protection may cease. Protection will only cease, however, following a clear warning which has remained unheeded.
920. Sick bays and hospital ships
1. The sick bay on a warship must, in case of combat on board, be respected and protected as far as this is possible. A captor may, however, use the sick bay for other purposes if this is militarily necessary, provided proper care is taken of the wounded and sick.
2. Hospital ships and other craft employed on medical duties are subject to control and search. They may be required to follow a particular course and their radios and other means of communication may be controlled. The medical services may be controlled or even rejected. Depending on the circumstances, they may be detained for up to seven days. Neutral observers may also be put on board to ensure that the provisions of the Convention are strictly obeyed.
3. Hospital ships found in a port at the time of its occupation by an adverse party must be allowed to leave. Hospital ships do not rank as warships with regard to their stay in neutral ports. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 918 and 920.
In its chapter entitled “Treatment of civilians in the hands of a party to the conflict or an occupying power”, the manual provides:
Convoys of vehicles or hospital trains on land, and specially provided vessels at sea, conveying wounded and sick civilians, must be protected and respected in the same way as civilian hospitals. Subject to the consent of the State they must bear the distinctive Red Cross or Red Crescent emblem provided for hospitals. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1112.1.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual qualifies “attacking a properly marked hospital ship or medical aircraft” as a war crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.3.e.
In its chapter on non-international armed conflicts, the manual states:
Medical units and transports are to be respected at all times and not be made the object of attack. This protection shall only cease if they commit hostile acts outside their humanitarian function. In such circumstances, a warning must be given, and protection only ceases if such warning remains unheeded. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1719.2.
In its glossary, the manual defines hospital ships as:
a. vessels built or equipped by a party to the conflict specially and solely with a view to assisting either military and/or civilian wounded, sick or shipwrecked;
b. vessels of the same nature used by national Red Cross or Red Crescent societies, officially recognized relief societies or by private persons, provided that the party to the conflict on which they depend has given them an official commission; and
c. vessels of the same nature used by neutral states, their national Red Cross or Red Crescent societies, officially recognized relief societies, private persons of neutral states or impartial international humanitarian organizations, provided that they have placed themselves under the control of one of the parties to the conflict with the authorization of that party and with the previous consent of their own government. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, Glossary, p. GL-7.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Hospital ships … may not be captured or attacked. They must never hamper the movement of combatants. During an engagement they act at their own risk.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter II, Section II, § 2.1.
Also in Volume 2, the manual states that “in case of doubt a ship can reasonably be stopped and searched to ascertain its status. If it refuses to stop or resists being visited and searched it may be destroyed after a warning to this effect has been given.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP) , Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter II, Section I, § 1.2.
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual states: “Hospital ships (including their rescue boats and small craft) … may not be captured or attacked.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section 4.
Chad
Chad’s Instructor’s Manual (2006) states that “a hospital ship may not be attacked or captured”. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 65.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
II.2.1. Protection of hospitals and material used by medical personnel
Hospitals must not be attacked and medical personnel must be spared. As long as they have to fulfil their special task, they must not be used for a different purpose. This equally applies to medical transports.
Medical transport means any means of transportation assigned exclusively to the conveyance by land, water or air of the wounded, sick, shipwrecked, medical and religious personnel or medical material.
A hospital ship means a ship built or equipped specially and exclusively with a view to assisting the wounded, sick and shipwrecked, to caring for them and to transporting them. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 29–30.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
II.2.6. Means of medical transportation
Means of medical transportation of all kinds (land, sea and air) are protected and must not be made the object of attack. …
Medical transportation should not be armed (i.e. by collective weapons) because of the risk that they are considered as combat vehicles. The medical personnel of medical transportations can, however, keep their individual weapons. …
II.2.7. Ships
The following ships of an adverse Party must not be attacked:
- hospital ships;
- boats used for coastal rescue operations or medical transport operations. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 39.
Croatia
Croatia’s Soldiers’ Manual (1992) instructs soldiers to respect hospital ships displaying the distinctive emblem. 
Croatia, Rules of Conduct for Soldiers, Republic of Croatia, Ministry of Defence, 1992, pp. 2 and 3.
Ecuador
Ecuador’s Naval Manual (1989) qualifies “deliberate attack upon hospitals ships … [and] medical vehicles” as a war crime. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5.
France
France’s LOAC Manual (2001) provides:
Convention II adopted in Geneva on 12 August 1949 protects hospital ships against armed attacks and capture. Considered as a hospital ship is a ship built or equipped specially and solely with a view to assisting the wounded. It must be the object of special marking, i.e. be painted white and covered with a red cross, so that its identification is possible. A hospital ship must not be equipped with weapons: it can, however, possess portable arms for self-defence. Ships chartered by a party to the conflict for the transport of medical equipment and lifeboats benefit from the same protections.
Furthermore, the warships of parties to a conflict can carry out support missions in the health domain; these ships are not considered as hospital ships. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 57.
Greece
The Hellenic Navy’s International Law Manual (1995) provides:
The need to protect non-combatants during naval warfare, as in any other kind of warfare, is indispensable. This is why art. 22 of the Ist Add. Protocol to the Geneva Conventions extend the protection afforded by the provisions of the IInd Geneva Convention to hospital vessels and lifeboats of any type, their personnel and generally to all non-combatants who are wounded, sick or shipwrecked even when they are aboard any kind of vessel. As a consequence, these persons should not be captured by the enemy and in cases where they are found in enemy hands, there is an obligation to be assisted and protected, according to the relevant conventional provisions. 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 7, Part I, § 5.
Guinea
Guinea’s Soldier’s Manual (2010), under the heading “Distinctive signs”, displays an image of a ship with a red cross on a white ground and states: “Let these … ships … move around and do not enter them.” 
Guinea, Soldier’s Manual, Ministry of National Defence, 2010, p. 14.
Hungary
Hungary’s Military Manual (1992) instructs soldiers to respect and protect medical transports, whether by land, sea or air. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 19.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention II, states:
121. Military hospital ships may not be attacked or captured under any circumstances and must be respected and protected at all times, provided that their names and descriptions have been notified to the parties to the conflict ten days before they are employed.
122. Hospital ships utilized by National Red Cross Societies, by officially recognized relief societies or by private persons are entitled to the same protection as military hospital ships.
123. Establishments ashore entitled to the protection of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field must be protected from bombardment or attack from the sea.
128. Ships chartered to transport medical equipment and materials are authorized to transport supplies intended exclusively for the treatment of wounded and sick members of armed forces or for the prevention of disease. The adverse power reserves the right to board such ships, but not to capture them or seize the supplies that they are carrying. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, §§ 121–123 and 128.
Netherlands
The Military Manual (1993) of the Netherlands states: “Medical transport and medical means of transportation (vehicles, ships and aircraft) must be respected and protected.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VI-6.
The manual repeats this rule with respect to non-international armed conflicts. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-6.
Netherlands
The Military Handbook (1995) of the Netherlands provides: “Medical transports may not be attacked … Medical transports, whether on water, on land or in the air, must also be respected. Such transport may not, however, be used as normal military transport.” 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, pp. 7-40 and 7-41.
New Zealand
New Zealand’s Military Manual (1992) states:
Hospital ships … must be respected and protected at all times and must not be attacked …
Convoys of vehicles or hospital trains on land, and specially provided vessels at sea, conveying wounded and sick civilians, the infirm, and maternity cases must be protected and respected in the same way as civilian hospitals. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 1007(1) and (2) and 1110(1).
The manual further states that “attacking a properly marked hospital ship” constitutes a war crime recognized by the customary law of armed conflict. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1704(5).
With respect to non-international armed conflicts in particular, it states that “medical … transports are to be respected at all times and not made the object of attack”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1818(2).
Nicaragua
Nicaragua’s Military Manual (1996) states, with respect to international armed conflicts, that assistance to the wounded, sick and shipwrecked includes a requirement of “respect for and protection of transportation over … sea of civilian wounded and sick”. 
Nicaragua, Manual de Comportamiento y Proceder de las Unidades Militares y de los Miembros del Ejército de Nicaragua en Tiempo de Paz, Conflictos Armados, Situaciones Irregulares o Desastres Naturales, Ejército de Nicaragua, Estado Mayor General, Asesoría Jurídica del Nicaragua, 1996, Article 14(38).
Peru
Peru’s IHL Manual (2004) states:
Military hospital ships, that is to say, ships built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the parties to the conflict ten days before those ships are employed. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 157.f; see also §§ 87.a and b, 129.a.(1) and 172.h.
The manual further states:
(1) The exemption from attack of a hospital ship may cease only by reason of a breach of a condition of exemption and, in such a case, only after due warning has been given naming in all appropriate cases a reasonable time limit to discharge itself of the cause endangering its exemption, and after such warning has remained unheeded.
(2) If after due warning a hospital ship persists in breaking a condition of its exemption, it renders itself liable to capture and other necessary measures to enforce compliance.
(3) A hospital ship may only be attacked as a last resort if:
(a) diversion or capture is not feasible;
(b) no other method is available for exercising military control;
(c) the circumstances of non-compliance are sufficiently grave that the hospital ship has become, or may be reasonably assumed to be, a military objective;
(d) the collateral casualties or damage will not be disproportionate to the military advantage gained or expected. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 129.c.
The manual also states: “The names and descriptions of hospital ships must be notified to the parties to the conflict. Hospital ships and coastal rescue craft can be ordered to stop, move away or follow a certain route.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 110.c.
Peru
Peru’s IHL and Human Rights Manual (2010) states:
Military hospital ships, that is to say, ships built or equipped by the powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the parties to the conflict ten days before those ships are employed. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 148(f), p. 335; see also pp. 396–397.
The manual also states:
The following categories of enemy ships may not be attacked:
(1) Hospital ships.
(2) Coastal rescue craft and other means of medical transport. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 120(a)(1)–(2), p. 310.
The manual further states:
b. Conditions for immunity
… [Hospital ships] only enjoy immunity from attack if:
(1) They act in a way consistent with their usual activities.
(2) They submit to identification and inspection as requested.
(3) They do not intentionally obstruct the movement of combatants and obey orders to stop or move away as requested.
c. Loss of immunity
(1) The immunity of a hospital ship from attacks may only cease if it does not comply with any of the conditions for immunity and, if this is the case, it shall not cease until after due warning has been given, naming, in all appropriate cases, a reasonable time limit to discharge itself of the cause endangering its immunity [from attack], and after such warning has remained unheeded. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 120(b)–(c)(1), p. 310.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
117. The following vessels shall not be attacked:
- military hospital ships;
- hospital ships;
- small craft used for coastal rescue operations and medical transports;
The above vessels shall not be attacked or captured if they:
- are innocently employed in their normal role;
- do not commit actions falling under Paragraph 116 [i.e., make an effective contribution to military action];
- do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.
118. Ships that belong to any class of vessels mentioned in Paragraph 117 may only be attacked as a last resort if:
- diversion is not feasible;
- no other method is available for exercising military control;
- the acts it commits give reasons to consider it as a military objective;
- the collateral casualties or damage will not be disproportionate to the military advantage gained or anticipated.
119. Military hospital ships shall not be attacked or captured and shall enjoy respect and protection, on condition that their names and descriptions have been notified to the parties to the conflict ten days before those ships are employed.
Hospital ships shall have the same protection as military hospital ships on condition that they observe the provision concerning notification with regard to the latter; they must also be provided with certificates from responsible authorities stating that the vessels have been under their control while fitting out and on departure.
The medical and religious personnel of hospital ships and their crews may not be captured, whether or not there are wounded and sick on board.
122. The ships described in Paragraph 119 shall not be exempt from protection provided by international humanitarian law if:
- the crews of ships are armed for the maintenance of order, for their own defence or that of the sick and wounded;
- apparatus exclusively intended to facilitate navigation or communication is present on board;
- portable arms and ammunition taken from the wounded, sick and shipwrecked is discovered on board;
- equipment and personnel intended exclusively for medical duties are transported, over and above the normal requirements. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, §§ 117–119 and 122.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
Any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively for the transportation of medical personnel, wounded and sick and other facilities are referred to as medical transport. These may include aircraft, vehicles, ships etc.
Before any transport for medical purpose, it must be marked with the protective emblem which is the Red Cross on a white background.
Medical transport is not to be attacked but may lose its [protected] status if, for example, it carries arms or military equipment or the vehicle is used to gather intelligence about the location or deployment of the enemy.
It is a crime to attack a clearly marked medical transport or to use them for a non-medical purpose.
Medical transport, if captured, should be used to provide medical services to the wounded and sick. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, pp. 60–61.
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
67. Medical Transportation. The following definitions are relevant under this heading:
a. “Medical transportation” means the conveyance by land, water or air of wounded, sick or shipwrecked persons, medical and religious personnel and medical material.
b. “Medical transports” cover any means of transport, military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a Party to a conflict.
68. All means of medical transport, whether permanent or temporary, must be assigned exclusively to medical purposes in order to be entitled to protection. A convoy carrying both wounded and able-bodied soldiers or arms would lose the right to protection to the detriment of the wounded. (Note: the presence of light arms which have just been taken from the wounded and not yet turned over to the proper authority is permitted).
69. The term “respect” for the means of medical transport indicates that they may not be attacked or damaged, nor may their passage be obstructed. They must be permitted to carry out their assigned tasks. Medical transports by land and medical ships and craft must be respected and protected in the same way as mobile medical units. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 67–69.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Enemy Vessel and Aircraft that may not be attacked
- The following classes of enemy vessels may not be attacked:
- Hospital ships.
- Small crafts used for coastal rescue operations and other medical transports.
- The protected vessels listed above are exempt from attack only if they
- Are innocently employed in their normal role;
- Submit to identification and inspection when required; or
- Do not intentionally hamper the movement of combatants and obey orders to stop or move out the way when required.
Loss of Exemption
- Hospital Ships
- The exemption from attack of a hospital ship may cease only by reason of a breach of a condition of exemption in the previous subparagraph and, in such a case, only after due warning has been given naming in all appropriate cases a reasonable time limit to discharge itself of the cause endangering its exemption, and after such warning has remained unheeded.
- If after due warning a hospital ship persists in breaking a condition of exemption, it renders itself liable to capture or other necessary measures to enforce compliance.
- A hospital ship may only be attacked as a last resort if:
- Diversion or capture is not feasible;
- No other method is available for exercising military control;
- The circumstances of non-compliance are sufficiently grave that the hospital ship has become, or may be reasonably assumed to be, a military objective; and
- The collateral casualties or damage will not be disproportionate to the military advantage gained or expected.
- If any other class of vessel that is exempted from attack breaches any of the conditions of its exemption, it may be attacked. But only if
- Diversion or capture is not feasible;
- No other method is available for exercising military control under the circumstances;
- The non-compliance is so grave that the vessel has become, or may be reasonably assumed to have become a military objective; and
- The collateral casualties or damage will not be disproportionate to the military advantage expected or to be gained. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 4, pp. 201–203.
[emphasis in original]
The manual also states:
Measures Short of Attack: Interception, Visit, Search, Diversion and Capture
- Capture
- Enemy Vessels and Goods
- Protected vessels may not be captured (hospital ships and small craft used for coastal rescue operations, other medical transports, so long as they are needed for the wounded, sick and shipwrecked on board, etc). These vessels are only exempted from capture if they:
- Are innocently employed in their normal role.
- Do not commit acts harmful to the enemy.
- Immediately submit to identification and inspection when required.
- Do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 4, pp. 207 and 208–209.
Ukraine
Ukraine’s IHL Manual (2004) states: “‘Means of medical transportation’ means any transport used for medical (sanitary) transportation by land, sea or air … [M]eans of medical transportation may be escorted by guard or convoy.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.35.
The manual further states: “Objects protected by international humanitarian law [include] means of medical transportation … Attacks against such objects shall be prohibited.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.51.
The capture of hospital ships, if not justified by military necessity, is considered to be a “serious violation” of international humanitarian law. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.8.6.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “Convoys of vehicles or hospital trains on land, and specially provided vessels at sea, conveying wounded and sick civilians, the infirm, and maternity cases must be protected and respected in the same way as civilian hospitals.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 33.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
7.12. Medical transport means any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to the conveyance by land, water or air of the wounded, sick, shipwrecked, medical or religious personnel, medical equipment or medical supplies protected by the Geneva Conventions and Additional Protocol I and under the control of a competent authority of a party to the conflict. In Additional Protocol I, reference to “medical vehicles” expressly means “any medical transports by land”. Similarly, “medical ships and craft” means “any medical transports by water” and “medical aircraft” means “any medical transports by air”.
7.12.1. The assignment to medical purposes must be exclusive, although it may be permanent or temporary. The word “exclusive” is intended to restrict the definition of medical transport and its use so that the essential protection will not be eroded by abuses. “Permanent” means for an indeterminate period; “temporary” means limited periods but devoted exclusively to medical tasks during the whole of such periods.
Protection
7.20. The general rule is that medical transport is entitled to similar respect and protection as is given to medical units. However, there remain some practical difficulties especially in the case of medical ships and craft and medical aircraft. These categories are dealt with below.
Hospital ships
7.21. Ships that are built, converted or equipped specially and solely with a view to assisting the wounded, sick and shipwrecked and to treating them and transporting them are regarded as hospital ships. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 7.12–7.13.1 and 7.20–7.21.
In its chapter on maritime warfare, the manual provides that “hospital ships” and “small craft used for coastal rescue operations and other medical transports” are exempt from attack and from capture. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 13.33 and 13.100.
Lastly, in its chapter on enforcement of the law of armed conflict, the manual refers to “attacking a properly marked hospital ship or medical aircraft” as a war crime “traditionally recognized by the customary law of armed conflict”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.29.
United States of America
The US Air Force Pamphlet (1976) states: “In addition to grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: (1) deliberate attack on … hospital ships”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(1).
United States of America
The US Air Force Commander’s Handbook (1980) provides that ambulances and hospital ships “should not be deliberately attacked, fired upon, or unnecessarily prevented from performing their medical duties”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 3-2.
United States of America
The US Naval Handbook (1995) qualifies “deliberate attack upon hospital ships” as a war crime. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5.
United States of America
The US Naval Handbook (2007) states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include: “Deliberate attacks upon … hospital ships.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.
United States of America
The US Manual on Detainee Operations (2008) states:
Legal Considerations
a. As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations …
c. The four Geneva Conventions of 1949 are fully applicable as a matter of international law to all military operations that qualify as international armed conflicts … The principles reflected in these treaties are considered customary international law, binding on all nations during international armed conflict. Although often referred to collectively as the “Geneva Conventions,” the specific treaties are:
(2) [1949] Geneva Convention [II] … This convention … protects hospital ships. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
Zimbabwe
Zimbabwe’s Code of Conduct for Combatants (1993) states: “Respect hospitals ships … marked with Red Cross/Red Crescent/Red Crystal emblems.” 
Zimbabwe, Code of Conduct for Combatants, Joint publication of the Zimbabwe Defence Forces and the International Committee of the Red Cross Regional Delegation in Harare, 1993, p. 7.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Estonia
Under Estonia’s Penal Code (2001), “an attack against … a hospital ship or aircraft, or any other means of transport used for transportation of non-combatants” is a war crime. 
Estonia, Penal Code, 2001, § 106.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 35 of the Geneva Convention I and Article 21 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 21, as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 11, are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Romania
Romania’s Penal Code (1968) provides for the punishment of:
The total or partial destruction of objects marked with the regular distinctive emblem, such as:
a) … hospital ships … 
Romania, Penal Code, 1968, Article 359.
Somalia
Somalia’s Military Criminal Code (1963) states:
363. Where a commander fails to adopt measures to protect buildings, places or objects that must be respected. – 1. A penalty of military confinement for up to three years shall be imposed on a commander of attacking forces who fails to adopt the measures prescribed by law and by international agreements to ensure respect for:
(a) … hospital ships [and] ambulance ships, … where they are not at the same time being used for military purposes and have been designated by the distinctive signs specified in the international conventions, or have in some way been indicated in advance to the enemy, and are easily visible even from a great distance and at a high altitude.
375. Use of weapons against … medical ships … – Anyone who uses weapons against … hospital ships, ambulance ships or their vessels … when, in accordance with the law and international agreements, they must be regarded as respected and protected, shall, unless the act constitutes a more serious offence, be punished by military confinement for not less than 10 years. 
Somalia, Military Criminal Code, 1963, Articles 363(1)(a) and 375.
Germany
In the Dover Castle case in 1921, a German court acquitted the commander of a German submarine of sinking a hospital ship and killing six members of its crew in violation of the customs and laws of war. The Court found that the commander had sunk the ship in execution of orders and could not, therefore, be held responsible for the ensuing violations of the law. 
Germany, Reichsgericht, Dover Castle case, Judgment, 4 June 1921, p. 429.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Egypt
In its written comments submitted to the ICJ in the Nuclear Weapons case in 1995, Egypt stated that it was “prohibited to attack convoys of vehicles, hospital trains, hospital ships, aircraft exclusively employed for the removal of wounded and sick civilians, or the transport of medical personnel and equipment”. 
Egypt, Written comments on other written statements before the ICJ, Nuclear Weapons case, September 1995, p. 21, § 50.
Germany
In 1944, the German hospital ship the Tübingen was bombed and sunk by the British air force. Following the sinking, the German Government issued the following official protest:
On 18 November 1944 at 0745 hours near Pola the German hospital ship Tübingen was attacked by two double-engine British bombers with machine guns and bombs so that it sank, although the course of the hospital ship had been communicated to the British government well in advance of its voyage to Saloniki and back for the purpose of transporting wounded German soldiers. Numerous members of the crew were thereby killed and wounded. The German government emphatically protests the serious violations of international law committed by the sinking of the hospital ship Tübingen. 
Germany, as cited by Alfred M. de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945, University of Nebraska Press, Lincoln, 1989, pp. 261–266.
United Kingdom of Great Britain and Northern Ireland
The United Kingdom reacted to the sinking of the Tübingen during the Second World War by ordering an inquiry, in the course of which it was determined that, through a chain of errors on the part of the UK pilots and a misunderstanding in the wireless transmission, the order was actually given to attack the hospital ship. The UK Government expressed its regret at the sinking of the ship, stating:
In the circumstances described, they cannot refrain from remarking that had the Tübingen been properly illuminated at the time of sighting in accordance with international practice, the leader of the section would have had no difficulty in identifying her as a hospital ship and the incident would thus have been avoided. 
United Kingdom, as cited by Alfred M. de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945, University of Nebraska Press, Lincoln, 1989, pp. 261–266.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
“Medical transport” means any means of transportation assigned exclusively to conveyance by land, water or air of the wounded, sick, shipwrecked, of medical and religious personnel, or of medical material. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 67.
Delegates also teach that “specifically protected … transports recognized as such must be respected”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 474.
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