principles and with the interpretation agreed upon between the British and French Governments in 1869.1 ARTICLE 6 Neutral merchantmen, yachts, or vessels, having, or taking on board, sick, wounded, or shipwrecked of the belligerents, cannot be captured for so doing, but they are liable to capture for any violation of neutrality they may have committed. It will be noticed that we are not proposing any article covering the case where a merchant vessel of one of the belligerents is carrying sick or wounded. In the absence of such a provision the common law prevails and the vessel is, consequently, exposed to capture. This seems logical and correct in prin[15] ciple. Paragraph one of the tenth additional article allows the ship, if charged exclusively with removal of sick and wounded, to be "protected by neutrality"; it would not be so where there were passengers and goods besides the sick and wounded. We have not deemed this a proper distinction. Similarly, the Commission does not propose for adoption any text corresponding to the sixth additional article, as the case provided therein seemed included in those already dealt with and accordingly to require no special mention. That article deals with boats which at their own risk and peril, during and after an engagement, pick up the shipwrecked or wounded, or which having picked them up, convey them on board a neutral or hospital ship. If these boats belong to the neutral or hospital ship, they have the same character as their ship; they cannot be captured under the rules already laid down. If, on the other hand, they belong to a war-ship or merchantman of one of the belligerents, they may be captured by the other belligerent. No special circumstance appears to exist in their case to remove them from the application of the principles already stated, which appear to us to cover all probable cases. We have thus dealt with the sixth point of Count MoURAVIEFF'S circular. THE MEDICAL PERSONNEL There is no need, theoretically, to concern ourselves with the medical personnel on board a hospital ship; as the ship itself is respected, the personnel it carries will not be disturbed in the discharge of duty. But the case will be different with a war vessel that falls into the power of the enemy and has on board a medical staff; we may also imagine an enemy merchantman carrying sick and wounded with physicians and nurses to care for them. It would be well to decide, by analogy with land warfare, that whenever a ship is captured, the medical personnel thereon shall be inviolable, or in other words, shall not be made prisoners of war. The terms "neutral" and "neutrality neutrality" should be eschewed in speaking of persons as well as of ships. The personnel should continue to perform their functions so far as necessary. Possibly the victor may not have at his disposal a sufficient number of physicians and nurses to take care of the sick who have fallen into his power. It is well to lay down the principle that the medical personnel in the hands of the enemy are not prisoners of war, but not to say just when they will have the right to leave. This point must be left to the discretion of the commander 1 Letter of the Earl of CLARENDON of January 21, 1869, and reply of Prince DE La Tour D'AUVERGNE of the following February 26th. in chief, as circumstances vary and do not well lend themselves to precise regulations. The commander, of course, must be imbued with the knowledge that he has no right to detain them arbitrarily, since they are not prisoners of war. Lastly, we must ensure that this personnel be paid for the time during which they are detained with the enemy. We may have some hesitation as to the amount of this pay. Shall it be what the physicians who are detained had in their own army, or what physicians of the same grade in the enemy's army receive? The stricter view is that it should be only the lower figure. It has, however, seemed simpler and fairer to allow the physicians the enjoyment of their salaries intact, without entering into details about salaries prevailing with the belligerent in whose hands the physicians are. The text proposed below is taken from the seventh and eighth additional articles, which have been changed in but a few points. ARTICLE 7 The religious, medical, and hospital staff of any captured ship is inviolable, and its members cannot be made prisoners of war. On leaving the ship they take with them the objects and surgical instruments which are their own private property. This staff shall continue to discharge its duties while necessary, and can afterwards leave when the commander in chief considers it possible. The belligerents must guarantee to the said staff when it has fallen into their hands the enjoyment of their salaries intact. WOUNDED, SICK, OR SHIPWRECKED The general fundamental principle of the Geneva Convention, which is that there exists an obligation to give succor to the victims of military operations, is one that should be applied alike to war on land and war on sea. This idea has been given application in connection with hospital ships (see Article 4, paragraph 1). It also finds expression in the first paragraph of additional Article 11 (our Article 8). Sailors and soldiers on board when sick or wounded, to whatever nation they belong, shall be protected and tended by the captors. In the provision submitted to the Conference by the Commission, we have spoken of wounded, sick, and shipwrecked, not of victims of maritime warfare. The latter expression, although generally accurate, would not always be so, and therefore should not appear. The rules set forth are to be applied from the moment that there are wounded and sick on board sea-going vessels, it being immaterial where the wound was given or the sickness contracted, whether on land or at sea. Consequently, if a vessel's duty is to carry by sea the wounded or sick of land forces, this vessel and these sick and wounded come under the provisions of our project. On the other hand, it is clear that if sick or wounded sailors are disembarked and placed in an ambulance or a hospital, the Geneva Convention applies to them in all respects. As this observation seems to us to respond fully to the remarks made in the subcommission on this point, we think it unnecessary to insert any provision dealing especially with it. The status to be given the wounded, sick and shipwrecked has given rise to considerable controversy and even to the somewhat confused rules of the additional articles. See Article 6, paragraph 3; Article 10, paragraph 1; Article 11, paragraph 2; and Article 13, paragraph 8. It seemed to the Commission that the difficulty arose mainly out of the fact that the very simple general principle to be applied to the different cases had been lost sight of. This principle is as follows: a belligerent has in his power hostile combatants, and these combatants are his prisoners. It matters little that they are wounded, sick, or shipwrecked, or that they have been taken on board a vessel of any particular kind. These circumstances do not affect their legal status. This is the governing principle, and its application is not always consistent with the articles of 1868. A belligerent's hospital ship takes on board the sick, wounded, or shipwrecked of its own nationality and carries them to a port of its own country; why should not these be as unrestrained as those who are picked up by an ambulance? The last paragraph of the thirteenth additional article says, however, that the wounded and shipwrecked taken on board hospital ships cannot serve again during the war. If we suppose that the same hospital ship, with sick, wounded, or shipwrecked of its own nationality on board, meets a cruiser of the enemy, why would not the latter be justified in considering as prisoners of war the combatants thus coming into its power? There are some among the combatants, such as the sick and wounded, who have a right to special treatment, and towards whom the captor has certain duties; they are none the less all prisoners of war. The additional articles admit this to the extent of making such combatants incapable of further service in the war (Article 10, paragraph 1, and Article 13, towards the end). But this provision does not offer a sufficient guaranty. The cruiser therefore remains free to act according to circumstances; it may keep the prisoners, or send them to a port of its own country, or to a neutral port, or, in case of need, when there is no other port near, to one of the enemy's ports. It will also take the last-mentioned course when there are only sick or wounded whose condition is serious. It will not be interested in burdening itself or its own country with the sick and wounded of the enemy. It will therefore generally be the case that hospital ships or others having sick and wounded will not be diverted from their destination. Both humanity and the interest of the belligerent will enjoin this course. But the right of the belligerent cannot be ignored. The wounded or sick who are thus returned to their own country cannot serve during the continuance of the war. It is unnecessary to add that if they should be exchanged their status as prisoners of war at liberty on parole would cease, and they would resume their freedom of action. ARTICLE 9 The shipwrecked, wounded, or sick of one of the belligerents who fall into the power of the other, are prisoners of war. The captor must decide, according to circumstances, whether to keep them, send them to a port of his own country, to a neutral port, or even to an enemy port. In this last case, prisoners thus repatriated cannot serve again while the war lasts. The last provision remaining to be spoken of has no corresponding one in the additional articles. It deals with the case of the shipwrecked, wounded, or sick who are landed in a neutral port. This case must be provided for, both because it will naturally happen quite frequently and may, in the absence of a precise rule, give rise to difficulties. Of course a neutral Government is [17] not bound to receive within its territory the sick, wounded, or shipwrecked. Can it do so even, without failing in the duties of neutrality? The doubt arises from the fact that in certain cases a belligerent will often court danger in getting rid of the sick and wounded who encumber him and hamper him in his operations; the neutral territory will thus help him to execute his hostile enterprise better. Nevertheless, it has seemed that considerations of humanity ought to prevail here. In most cases the disembarkment of the sick and wounded picked up, for instance, by hospital ships or merchantmen would be purely an act of charity, and if this were not done the suffering of the sick and wounded would be needlessly aggravated by prolonging the passage so as to reach a port of their own nation. It may happen too that the wounded and the sick thus landed will belong to both belligerents. The neutral State which has consented to the disembarkment is obliged to take the necessary measures to the end that his territory may serve the victims of the war only as an asylum and that the individuals thus harbored shall not be able to take part in the hostilities again. This is an important point, especially in the case of the shipwrecked. Lastly, it is clear that the expenses occasioned by the presence of these sick, wounded, or shipwrecked ought not to be borne eventually by the neutral State. They should be refunded by the State to which the individuals belong. ARTICLE 10 The shipwrecked, wounded, or sick, who are landed at a neutral port, with the consent of the local authorities, must be guarded by the neutral States so as to prevent their again taking part in the operations of the war. The expenses of tending them in hospital and interning them shall be borne by the State to which the shipwrecked, sick or wounded belong. The Commission does not offer any provision corresponding to additional Article 14. It was agreed without debate that this article should be dropped. Doubtless it may unfortunately happen that the rules laid down, if made obligatory, will not always be obeyed, and that more or less serious abuses will be committed. Such regrettable acts will entail the ordinary penalties of the law of nations; they cannot be prevented by a special provision which would be of a nature to weaken the legal and moral force of the preceding rules. Text Submitted to the Conference Military hospital ships, that is to say, ships constructed or assigned by States specially and solely with the view to assist the wounded, sick and shipwrecked, the names of which have been communicated to the belligerent Powers at the commencement or during the course of hostilities, and in any case before they are employed, shall be respected and cannot be captured while hostilities. last. These ships, moreover, are not on the same footing as men-of-war as regards their stay in a neutral port. ARTICLE 2 Hospital ships, equipped wholly or in part at the expense of private individuals or officially recognized relief societies, shall likewise be respected and exempt from capture, if the belligerent Power to which they belong has given them an official commission and has notified their names to the hostile Power at the commencement of or during hostilities, and in any case before they are employed. These ships shall be provided with a certificate from the competent authorities, declaring that they had been under their control while fitting out and on final departure. ARTICLE 3 Hospital ships, equipped wholly or in part at the expense of private individuals or officially recognized societies of neutral countries, shall be respected and exempt from capture, if the neutral Power to which they belong has given them an official commission and has notified their names to the belligerent Powers at the commencement of or during hostilities, and in any case before they are employed. ARTICLE 4 [18] The ships mentioned in Articles 1, 2 and 3 shall afford relief and assistance to the wounded, sick, and shipwrecked of the belligerents without distinction of nationality. The Governments undertake not to use these ships for any military purpose. These ships must in nowise hamper the movements of the combatants. During and after an engagement they will act at their own risk and peril. The belligerents will have the right to control and search them; they can refuse to help them, order them off, make them take a certain course, and put a commissioner on board; they can even detain them, if important circumstances require it. As far as possible the belligerents shall enter in the log of the hospital ships the orders which they give them. ARTICLE 5 Military hospital ships shall be distinguished by being painted white outside with a horizontal band of green about a meter and a half in breadth. The ships mentioned in Articles 2 and 3 shall be distinguished by being painted white outside with a horizontal band of red about a meter and a half in breadth. The boats of the ships above mentioned, as also small craft which may be used for hospital work, shall be distinguished by similar painting. All hospital ships shall make themselves known by hoisting, with their national flag, the white flag with a red cross provided by the Geneva Convention. ARTICLE 6 Neutral merchantmen, yachts, or vessels, having, or taking on board, sick, wounded, or shipwrecked of the belligerents, cannot be captured for so doing, but they are liable to capture for any violation of neutrality they may have committed. |