International Law. A Treatise Volume Ii Part 28

526-554--Nippold, II. -- 33--Scott, _Conferences_, pp.

599-614--Takahashi, pp. 375-385--Fauchille in _R.G._ VI. (1899), pp. 291-302--Bayer, in _R.G._ VIII. (1901), pp. 225-230--Renault in _A.J._ II. pp. 295-306--Higgins, _War and the Private Citizen_ (1912), pp. 73-90, and in _The Law Quarterly Review_, XXVI (1910), pp. 408-414. See also the literature quoted above at the commencement of -- 118.

[Sidenote: Adaptation of Geneva Convention to Sea Warfare.]

-- 204. Soon after the ratification of the Geneva Convention the necessity of adapting its principles to naval warfare was generally recognised, and among the non-ratified Additional articles to the Geneva Convention of 1868 were nine which aimed at such an adaptation. But it was not until the Hague Peace Conference in 1899 that an adaptation came into legal existence. This adaptation was contained in the "Convention[413] for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864," which comprised fourteen articles. It has, however, been replaced by the "Convention (X.) for the Adaptation of the Principles of the Geneva Convention to Maritime War," of the Second Hague Peace Conference. This new convention comprises twenty-eight articles and was signed, although with some reservations, by all the Powers represented at the Conference, except Nicaragua which acceded later, and it has already been ratified by most of the signatory Powers. It provides rules concerning the wounded, sick, shipwrecked, and dead; hospital ships; sickbays on men-of-war; the distinctive colour and emblem of hospital ships; neutral vessels taking on board belligerent wounded, sick, or shipwrecked; the religious, medical, and hospital staff of captured ships; the carrying out of the convention, and the prevention of abuses and infractions.

[Footnote 413: Martens, _N.R.G._ 2nd Ser. XXVI. p. 979.]

[Sidenote: The Wounded, Sick, and Shipwrecked.]

-- 205. Soldiers, sailors, and other persons officially attached to fleets or armies, whatever their nationality, who are taken on board when sick or wounded, must be respected and tended by the captors (article 11). All enemy shipwrecked, sick, or wounded who fall into the power of a belligerent are prisoners of war. It is left to the captor to determine whether they are to be kept on board, or to be sent to a port of his own country, or a neutral port, or even a hostile port; and in the last case such repatriated prisoners must be prevented by their Government from again serving in the war (article 14). The shipwrecked, wounded, or sick, who are landed at a neutral port with the consent of the local authorities, must, unless there is an arrangement to the contrary between the neutral State concerned and the belligerent States, be guarded by the neutral State so as to prevent them from again taking part in the war;[414] the expenses of tending and interning them must be borne by the State to whom they belong (article 15). After each engagement, both belligerents must, so far as military interests permit, take measures to search for the shipwrecked, wounded, and sick, and to ensure them protection against pillage and maltreatment (article 16).

Each belligerent must, as early as possible, send to the authorities of their country, navy, or army, a list of the names of the sick and wounded picked up by him; and the belligerents must keep each other informed as to internments and transfers as well as to admissions into hospital and deaths which have occurred amongst the sick and wounded in their hands. And they must collect all objects of personal use, valuables, letters, &c., that are found in the captured ships in order to have them forwarded to the persons concerned by the authorities of their own country (article 17).

[Footnote 414: See below, -- 348_a_.]

[Sidenote: Treatment of the Dead.]

-- 205_a_. After each engagement both belligerents must, so far as military interests permit, take measures to ensure the dead protection against pillage and maltreatment, and they must see that the burial, whether by land or sea, or cremation of the dead is preceded by a careful examination of the corpses in order to determine that life is really extinct (article 16). Each belligerent must, as early as possible, send to the authorities of their country, navy, or army, the military identification marks or tokens found on the dead; they must also collect all the objects of personal use, valuables, letters, &c., which have been left by the wounded and sick who die in hospital, in order that they may be forwarded to the persons concerned by the authorities of their own country (article 17).

[Sidenote: Hospital Ships.]

-- 206. Three different kinds of hospital ships must be distinguished--namely, military hospital ships, hospital ships equipped by private individuals or relief societies of the belligerents, and hospital ships equipped by private neutral individuals and neutral relief societies.

(1) Military hospital ships (article 1) are ships constructed or a.s.signed by States specially and solely for the purpose of a.s.sisting the wounded, sick, and shipwrecked. Their names must be communicated to the belligerents at the commencement of or during hostilities, and in any case before they are employed. They must be respected by the belligerents, they may not be captured while hostilities last, and they are not on the same footing as men-of-war during their stay in a neutral port.

(2) Hospital ships equipped wholly or in part at the cost of private individuals or officially recognised relief societies of the belligerents must be respected by either belligerent (article 2), and are exempt from capture, provided their home State has given them an official commission and has notified their names to the other belligerent at the commencement of or during hostilities, and in any case before they are employed. They must, further, be furnished with a certificate from the competent authorities declaring that they had been under the latter's control while fitting out and on final departure.

(3) Hospital ships, equipped wholly or in part at the cost of private individuals or officially recognised relief societies of neutral States (article 3), must likewise be respected, and are exempt from capture, provided that they are placed under the control of one of the belligerents, with the previous consent of their own Government and with the authorisation of the belligerent himself, and that the latter has notified their names to his adversary at the commencement of, or during, hostilities, and in any case before they are employed.

According to article 4 all military and other hospital ships must afford relief and a.s.sistance to the wounded, sick, and shipwrecked of either belligerent. The respective Governments are prohibited from using these ships for any military purpose. The commanders of these vessels must not in any way hamper the movements of the combatants, and during and after an engagement they act at their own risk and peril. Both belligerents have a right to control and visit all military and other hospital ships, to refuse their a.s.sistance, to order them off, to make them take a certain course, to put a commissioner on board, and, lastly, to detain them temporarily, if important circ.u.mstances require this. In case a hospital ship receives orders from a belligerent, these orders must, as far as possible, be inscribed in the ship papers.

The protection to which hospital ships are ent.i.tled ceases if they are made use of to commit acts harmful to the enemy[415] (article 8). But the fact of the staff being armed for the purpose of maintaining order and defending the wounded and sick, and the fact of the presence of wireless telegraphic apparatus on board, are not sufficient reasons for withdrawing protection.

[Footnote 415: An interesting case of this kind occurred during the Russo-j.a.panese war. The _Aryol_ (also called the _Orel_), a hospital ship of the Russian Red Cross Society, was captured, and afterwards condemned by the Prize Court on the following grounds:--(_a_) For having communicated the orders of the commander-in-chief of the Russian squadron with which she was sailing to other Russian vessels; (_b_) for carrying, by order of the commander-in-chief of the squadron, in order to take them to Vladivostock, the master and some members of the crew of the British steamship _Oldhamia_, which had been captured by the Russians; (_c_) for having been instructed to purchase in Cape Town, or its neighbourhood, 11,000 ft. of conducting wire of good insulation; (_d_) for having navigated at the head of the squadron in the position usually occupied by reconnoitring vessels.--See Takahashi, pp. 620-625, and Higgins, _op. cit._ p. 74, and in _The Law Quarterly Review_, XXVI.

(1910), p. 408.]

It must be specially observed that any man-of-war of either belligerent may, according to article 12, demand the surrender of the wounded, sick, or shipwrecked who are on board hospital ships of any kind. According to a reservation by Great Britain, article 12 is understood "to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part."

[Sidenote: Hospital Ships in Neutral Ports.]

-- 206_a_. For the purpose of defining the status of hospital ships when entering neutral ports an International Conference met at the Hague in 1904, where Germany, Austria-Hungary, Belgium, China, Korea, Denmark, Spain, the United States of America, France, Greece, Guatemala, Italy, j.a.pan, Luxemburg, Mexico, Holland, Persia, Portugal, Roumania, Russia, Servia, and Siam, were represented. Great Britain, however, did not take part. The following is the text of the six articles of the Convention signed by all the representatives:--

Article 1.--Hospital ships fulfilling the conditions prescribed in articles 1, 2, and 3 of the Convention concluded at the Hague on July 27, 1899, for the adaptation of the principles of the Geneva Convention of August 22, 1864, to naval warfare shall in time of war be exempt in the ports of the contracting parties from all dues and taxes imposed on vessels for the benefit of the State.

Article 2.--The provision contained in the preceding article shall not prevent the exercise of the right of search and other formalities demanded by the fiscal and other laws in force in the said ports.

Article 3.--The regulation laid down in article 1 is binding only upon the contracting Powers in case of war between two or more of themselves. The said rule shall cease to be obligatory as soon as in a war between any of the contracting Powers a non-contracting Power shall join one of the belligerents.

Article 4.--The present Convention, which bears date of this day and may be signed up to October 1, 1905, by any Power which shall have expressed a wish to do so, shall be ratified as speedily as possible. The ratifications shall be deposited at the Hague. On the deposit of the ratifications, a _proces-verbal_ shall be drawn up, of which a certified copy shall be conveyed by diplomatic channels, after the deposit of each ratification, to all the contracting Powers.

Article 5.--Non-signatory Powers will be allowed to adhere to the present convention after October 1, 1905. For that purpose they will have to make known the fact of their adhesion to the contracting Powers by means of a written notification addressed to the Government of the Netherlands, which will be communicated by that Government to all the other contracting Powers.

Article 6.--In the event of any of the high contracting parties denouncing the present Convention, the denunciation shall only take effect after notification has been made in writing to the Government of the Netherlands and communicated by that Government at once to all the other contracting Powers. Such denunciation shall be effective only in respect of the Power which shall have given notice of it.

[Sidenote: Sick-Bays.]

-- 206_b_. According to article 7, in case of a fight on board a man-of-war, the sick-bays must, as far as possible, be respected and spared. These sick-bays, and the material belonging to them, remain subject to the laws of war; they may not, however, be used for any purpose other than that for which they were originally intended so long as they are required for the wounded and sick. But should the military situation require it, a commander into whose power they have fallen may nevertheless apply them to other purposes, under the condition that he previously makes arrangements for proper accommodation for the wounded and sick on board. The protection to which sick-bays are ent.i.tled ceases if they are made use of to commit acts harmful to the enemy (article 8).

But the fact that the staff of sick-bays is armed in order to defend the wounded and sick is not sufficient reason for withdrawing protection.

[Sidenote: Distinctive Colour and Emblem of Hospital Ships.]

-- 207. All military hospital ships must be painted white outside with a horizontal band of green about one metre and a half in breadth. Other hospital ships must also be painted white outside, but with a horizontal band of red. The boats and small craft of hospital ships used for hospital work must likewise be painted white. And besides being painted in this distinguishing colour, all military and other hospital ships (article 5) must hoist, together with their national flag, the white flag with a red cross stipulated by the Geneva Convention. If they belong to a neutral State, they must also fly at the main mast the national flag of the belligerent under whose control they are placed.

Hospital ships which, under the terms of article 4, are detained by the enemy, must haul down the national flag of the belligerent to whom they belong. All hospital ships which wish to ensure by night the freedom from interference to which they are ent.i.tled, must, subject to the a.s.sent of the belligerent they are accompanying, take the necessary measures to render their special painting sufficiently plain. According to article 6 the distinguishing signs mentioned in article 5 may only be used, whether in time of peace or war, for protecting or indicating the ships therein mentioned.

Although in this connection the red cross is especially stipulated as the distinctive emblem, there is no objection to the use by non-Christian States, who object to the cross on religious grounds, of another emblem. Thus Turkey reserved the right to use a red crescent, and Persia to use a red sun.

[Sidenote: Neutral Vessels a.s.sisting the Wounded, Sick, or Shipwrecked.]

-- 208. A distinction must be made between neutral men-of-war and private vessels a.s.sisting the sick, wounded, and shipwrecked.

(1) If men-of-war take on board wounded, sick, or shipwrecked persons, precaution must be taken, so far as possible, that they do not again take part in the operations of war (article 13). Such individuals must not, however, be handed over to the adversary but must be detained till the end of the war.[416]

(2) Neutral merchantmen,[417] yachts, or boats which have of their own accord rescued sick, wounded, or shipwrecked men, or who have taken such men on board at the appeal of the belligerent, must, according to article 9, enjoy special protection and certain immunities. In no case may they be captured for the sole reason of having such persons on board. But, subject to any undertaking that may have been given to them, they remain liable to capture for any violation of neutrality they may have committed.

[Footnote 416: See below, -- 348.]

[Footnote 417: See below, -- 348_a_.]

It must be specially observed that, according to article 12, any man-of-war of either belligerent may demand from merchant ships, yachts, and boats, whatever the nationality of such vessels, the surrender of the wounded, sick, or shipwrecked who are on board.

According to the reservation of Great Britain, mentioned above in -- 206, article 12 is understood "to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part."

[Sidenote: The Religious, Medical, and Hospital Staff.]

-- 209. The religious, medical, and hospital staff of any captured vessel is inviolable, and the members may not be made prisoners of war, but they must continue to discharge their duties while necessary. If they do this, the belligerent into whose hands they have fallen has to give them the same allowances and the same pay as are granted to persons holding the same rank in his own navy. They may leave the ship, when the commander-in-chief considers it possible, and on leaving they are allowed to take with them all surgical articles and instruments which are their private property (article 10).

[Sidenote: Application of Convention X., and Prevention of Abuses.]

-- 209_a_. The provisions of Convention X. are only binding in the case of war between contracting Powers, they cease to be binding the moment a non-contracting Power becomes one of the belligerents (article 18). In the case of operations of war between land and sea forces of belligerents, the provisions of Convention X. only apply to forces on board ship (article 22). The commanders-in-chief of the belligerent fleets must, in accordance with the instructions of their Governments and in conformity with the general principles of the Convention, arrange the details for carrying out the articles of Convention X., as well as for cases not provided for in these articles (article 19). The contracting parties must take the necessary measures to instruct their naval forces, especially the personnel protected by Convention X., in the provisions of the Convention, and to bring these provisions to the notice of the public (article 20). The contracting Powers must, in case their criminal laws are inadequate, enact measures necessary for checking, in time of war, individual acts of pillage or maltreatment of the wounded and sick in the fleet, as well as for punishing, as unjustifiable adoption of military or naval marks, the unauthorised use of the distinctive signs mentioned in article 5 on the part of vessels not protected by the present Convention; they must communicate to each other, through the Dutch Government, the enactments for preventing such acts at the latest within five years of the ratification of Convention X.[418] (article 21).

[Footnote 418: Great Britain has entered a reservation against articles 6 and 21, but see above, -- 124_b_, p. 164, note 1.]

[Sidenote: General Provisions of Convention X.]

-- 209_b_. Convention X. comes into force sixty days after ratification or accession on the part of each Power concerned (article 26). It replaces the Convention of 1899 for the adaptation to naval warfare of the principles of the Geneva Convention, but this latter Convention remains in force between such of its contracting parties as do not become parties to Convention X. (article 25). Such non-signatory Powers of Convention X. as are parties to the Geneva Convention of 1906 are free to accede at any time, and a Power desiring to accede must notify its intention in writing to the Dutch Government which must communicate the accession to all the contracting Powers (article 24). Each of the contracting Powers is at any time at liberty to denounce Convention X.

by a written notification to the Dutch Government which must immediately communicate the notification to all the other contracting Powers; the denunciation, however, does not take effect until one year after the notification has reached the Dutch Government, and a denunciation only affects the Power making the notification (article 27). A register kept by the Dutch Minister of Foreign Affairs must record the dates of the deposit of ratifications, as well as the dates of accessions or of denunciations; each contracting Power is ent.i.tled to have access to this register and to be supplied with duly certified extracts from it (article 28).

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