Sheds Light on the Protection of Maritime Rescue Services in Times of Armed Conflict
On 4 May 2017, the International Committee of the Red Cross (ICRC) made available online (new window) its updated Commentary on the Second Geneva Convention of 1949 (GC II). The Commentary provides a detailed explanation of each of the provisions of GC II, seeking to reflect contemporary practice and legal interpretations.
Directly relevant to coastal search and rescue (SAR) institutions and organizations, the updated Commentary sheds light on the protection maritime rescue services enjoy in times of armed conflict and the conditions they must satisfy to avail themselves of that protection (Art 27).
GC II is the second of four conventions which, together with their Additional Protocols of 1977, constitute the bedrock of international humanitarian law (IHL). IHL is a body of law that applies only in times of armed conflict, regulating the conduct of hostilities and providing for the protection of persons and objects who do not, or no longer, participate in hostilities.
GC II applies specifically to international armed conflicts that take place wholly or partly at sea and provides for the protection of the wounded, sick, shipwrecked and dead members of the armed forces at sea. The protection of shipwrecked civilians in international armed conflict is based on the Fourth Geneva Convention, as well as Additional Protocol I of 1977.
In the event of a non-international armed conflict at sea, Article 3 common to the four Geneva Conventions ensures that fundamental protections are also afforded to civilians and other persons not taking active part in hostilities.
Critically, GC II imposes an obligation on the parties to the conflict to take all possible measures to search for and collect the wounded, sick and shipwrecked and ensure their adequate care, as well as to search for the dead and prevent them from being despoiled (Art 18).
The Convention acknowledges the important role played by coastal rescue craft in the implementation of its provisions. It thus provides that small rescue craft used by the State or by officially recognized lifeboat institutions for coastal rescue operations “shall be respected and protected so far as operational requirements permit” (Art 27(1)).
A similar form of protection is extended to fixed coastal installations used by these craft for their humanitarian mission, such as rescue coordination centers and hangars (Art 27(2)).
To be noted, Article 27 only applies to coastal rescue craft of the parties to the conflict. Neutral coastal rescue craft (i.e. craft of a State which is not a Party to an armed conflict between two or more other States) may, however, obtain special protection under Article 21, which provides that neutral vessels that agree to take on board and care for the wounded, sick and shipwrecked members of the armed forces and to collect the dead "shall enjoy special protection and facilities to carry out such assistance".
This protection is envisaged for neutral vessels whether they conduct coastal rescue operations on their initiative or in response to an appeal by a party to the conflict. In certain circumstances, Parties to an armed conflict may even be required to appeal to neutral vessels for assistance, if they cannot carry out a rescue themselves.
Coastal rescue craft are protected under GC II if they provide assistance to the wounded, sick and shipwrecked members of the armed forces. However, the protection extends further and covers the normal rescue work of lifeboat institutions in times of armed conflict.
Indeed, the purpose of Article 27 is to enable such institutions to continue their humanitarian work even in times of armed conflict, including when they rescue civilians at sea.
There are a number of conditions that must be met for coastal rescue craft to qualify for special protection under IHL.
This includes the requirement that the craft must be employed by a State or by officially recognized lifeboat institutions.
The requirement that the institution be “officially recognized” means that the institution must have been approved or authorized by a governmental authority or other public body to perform coastal rescue functions.
Since this presupposes the existence of a legal or administrative framework in the State in which the private lifeboat institution operates to provide for its approval or authorization, it is essential that States implement the provisions of GC II already in peace time.
The scope of protection of coastal rescue craft under Article 27 extends ‘so far as operational requirements permit’. Accordingly, operational considerations by a reasonable commander may justify interference with a rescue craft by, for example, preventing them from performing their humanitarian tasks in a given sea area.
However, the rules on the conduct of hostilities, as set out in Additional Protocol I, apply in parallel and an attacker would not be absolved from the fundamental obligations to target only military objectives, to take all feasible precautions and to refrain from attacks that would be indiscriminate.
With respect to the marking of coastal rescue craft in times of armed conflict, it is not the marking that confers protection on a rescue craft; this marking, indeed, merely facilitates the identification of vessels that are already protected under IHL.
GC II provides that the exterior of protected rescue craft should be white and have one or more dark red crosses painted on each side of the hull and on the horizontal surfaces (Art 43).
In view of modern techniques of naval warfare, for example over-the-horizon targeting capabilities, these traditional marking methods might not be sufficient to ensure the identification of protected rescue craft.
Parties to an armed conflict are free to agree on other modern methods of identification and such agreements can be critical to ensure that protected vessels are identified and given the protection to which they are entitled under GC II.
For further information, see the updated Commentary on GCII (new window).