sou · GYB322d3 · 2011-01-01 00:00:00 — 114.If the commander of a warship suspects that a merchant flying a neutral flag in fact has enemy character, the commander is entitled to exercise the right of visit and search, including the right of diversion for search under paragraph 121. 115.If the commander of a military aircraft suspects that a civil aircraft with neutral marks in fact has enemy character, the commander is entitled to exercise the right of interception and, if circumstances require, the right to for the purpose of visit and search. 116.If, after visit and search, there is reasonable ground for suspicion that the merchant flying a neutral flag or a civil aircraft with neutral marks has enemy character, the or aircraft may be captured as prize subject to adjudication. 117.Enemy character can be determined by registration, owner- ship, charter or other criteria. SECTION II: VISIT AND SEARCH OF MERCHANT In exercising their legal rights in an international armed conflict at sea, belligerent warships and military aircraft have a right to visit and search merchant outside neutral waters where there are reasonable grounds for suspecting that they are subject to capture. 119.As an alternative to visit and search, a neutral merchant may, with its consent, be diverted from its declared destination. Merchant under convoy of accompanying neutral warships 120.A neutral merchant is exempt from the exercise of the right of visit and search if it meets the following conditions: (a)it is bound for a neutral port; (b)it is under the convoy of an accompanying neutral warship of the same nationality or a neutral warship of a State with which the flag State of the merchant has concluded an agreement providing for such convoy; (c)the flag State of the neutral warship warrants that the neutral merchant is not carrying contraband or otherwise engaged in activities inconsistent with its neutral status; and (d)the commander of the neutral warship provides, if requested by the commander of an intercepting belligerent warship or military aircraft, all information as to the character of the merchant and its cargo as could otherwise be obtained by visit and search. Diversion for the purpose of visit and search If visit and search at sea is impossible or unsafe, a belligerent warship or military aircraft may a merchant to an appropriate area or port in order to exercise the right of visit and search. 122.In order to avoid the necessity of visit and search, belligerent States may establish reasonable measures for the inspection of cargo of neutral merchant and certification that a is not carrying contraband. 123.The fact that a neutral merchant has submitted to such measures of supervision as the inspection of its cargo and grant of certificates of non-contraband cargo by one belligerent is not an act of unneutral service with regard to an opposing belligerent. 124.In order to obviate the necessity for visit and search, neutral States are encouraged to enforce reasonable control measures and certification procedures to ensure that their merchant are not carrying contraband. SECTION III: INTERCEPTION, VISIT AND SEARCH OF CIVIL AIRCRAFT 125.In exercising their legal rights in an international armed conflict at sea, belligerent military aircraft have a right to intercept civil aircraft outside neutral airspace where there are reasonable grounds for suspecting they are subject to capture. If, after interception, reasonable grounds for suspecting that a civil aircraft is subject to capture still exist, belligerent military aircraft have the right to order the civil aircraft to proceed for visit and search to a belligerent airfield that is safe for the type of aircraft involved and reasonably accessible. If there is no belligerent airfield that is safe and reasonably accessible for visit and search, a civil aircraft may be diverted from its declared destination. 126.As an alternative to visit and search: (a)an enemy civil aircraft may be diverted from its declared destination; (b)a neutral civil aircraft may be diverted from its declared destination with its consent. Civil aircraft under the operational control of an accompanying neutral military aircraft or warship A neutral civil aircraft is exempt from the exercise of the right of visit and search if it meets the following conditions: (a)it is bound for a neutral airfield; (b)it is under the operational control of an accompanying: (i)neutral military aircraft or warship of the same nationality; or (ii)neutral military aircraft or warship of a State with which the flag State of the civil aircraft has concluded an agreement providing for such control; (c)the flag State of the neutral military aircraft or warship warrants that the neutral civil aircraft is not carrying contraband or otherwise engaged in activities inconsistent with its neutral status; and (d)the commander of the neutral military aircraft or warship provides, if requested by the commander of an intercepting belligerent military aircraft, all information as to the character of the civil aircraft and its cargo as could otherwise be obtained by visit and search. Measures of interception and supervision 128.Belligerent States should promulgate and adhere to safe procedures for intercepting civil aircraft as issued by the competent international organization. 129.Civil aircraft should file the required flight plan with the cognizant , complete with information as to registration, destination, passengers, cargo, emergency communica- tion channels, identification modes and codes, updates en route and carry certificates as to registration, airworthiness, passengers and cargo. They should not deviate from a designated route or flight plan without clearance unless unforeseen conditions arise, e.g., safety or distress, in which case appropriate notification should be made immediately. 130.Belligerents and neutrals concerned, and authorities providing air traffic services, should establish procedures whereby com- of warships and military aircraft are continuously aware of designated routes assigned to and flight plans filed by civil aircraft in the area of military operations, including information on communication channels, identification modes and codes, destina- tion, passengers and cargo. 131.In the immediate vicinity of naval operations, civil aircraft shall comply with instructions from the combatants regarding their heading and altitude. 132.In order to avoid the necessity of visit and search, belligerent States may establish reasonable measures for the inspection of the cargo of neutral civil aircraft and certification that an aircraft is not carrying contraband. 133.The fact that a neutral civil aircraft has submitted to such measures of supervision as the inspection of its cargo and grant of certificates of non-contraband cargo by one belligerent is not an act of unneutral service with regard to an opposing belligerent. In order to obviate the necessity for visit and search, neutral States are encouraged to enforce reasonable control measures and certification procedures to ensure that their civil aircraft are not carrying contraband. SECTION IV: CAPTURE OF ENEMY 135.Subject to the provisions of paragraph 136, enemy , whether merchant or otherwise, and goods on board such may be captured outside neutral waters. Prior exercise of visit and search is not required. 136.The following are exempt from capture: (a)hospital ships and small craft used for rescue operations; (b)other transports, so long as they are needed for the wounded, sick and shipwrecked on board; (c)granted safe conduct by agreement between the belligerent parties including: (i)cartel , e.g., designated for and engaged in the transport of prisoners of war; and (ii)engaged in humanitarian missions, including carrying supplies indispensable o the survival of the civilian population, and engaged in relief actions and rescue operations; (d)engaged in transporting cultural property under special protection; (e)charged with religious, non-military scientific or philanthropic missions; collecting scientific data of likely military applications are not protected; (f)small fishing and small boats engaged in local trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspectiorr, and (g)designed or adapted exclusively for responding to pollution incidents in the environment when actually engaged in such activities. listed in paragraph 136 are exempt from capture only if they: (a)are innocently employed in their normal role; (b)do not commit acts harmful to the enemy; (c)immediately submit to identification and inspection when required; and (d)do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required. 138.Capture of a merchant is exercised by taking such as prize for adjudication. If military circumstances preclude taking such a as prize at sea, it may be diverted to an appropriate area or port in order to complete capture. As an alternative to capture, an enemy merchant may be diverted from its declared destination. 139.Subject to paragraph 140, a captured enemy merchant may, as an exceptional measure, be destroyed when military circumstances preclude taking or sending such a for adjudication as an enemy prize, only if the following criteria are met beforehand: (a)the safety of passengers and crew is provided for; for this purpose, the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the prevailing sea and weather conditions by the proximity of land or the presence of another which is in a position to take them on board; (b)documents and papers relating to the prize are safeguarded; and (c)if feasible, personal effects of the passengers and crew are saved. 140.The destruction of enemy passenger carrying only civilian passengers is prohibited at sea. For the safety of the passengers, such be diverted to an appropriate area or port in order to complete capture. SECTION V: CAPTURE OF ENEMY CIVIL AIRCRAFT AND GOODS 141.Subject to the provisions of paragraph 142, enemy civil aircraft and goods on board such aircraft may be captured outside neutral airspace. Prior exercise of visit and search is not required. 142.The following aircraft are exempt from capture: (a)aircraft; and (b)aircraft granted safe conduct by agreement between the parties to the conflict. Aircraft listed in paragraph 142 are exempt from capture only if they: (a)are innocently employed in their normal role; (b)do not commit acts harmful to the enemy; (c)immediately submit to interception and identification when required; (d)do not intentionally hamper the movement of combatants and obey orders to from their track when required; and (e)are not in breach of a prior agreement. 144.Capture is exercised by intercepting the enemy civil aircraft, ordering it to proceed to a belligerent airfield that is safe for the type of aircraft involved and reasonably accessible and, on landing, taking the aircraft as a prize for adjudication. As an alternative to capture, an enemy civil aircraft may be diverted from its declared destination. 145.If capture is exercised, the safety of passengers and crew and their personal effects must be provided for. The documents and papers relating to the prize must be safeguarded. SECTION VI: CAPTURE OF NEUTRAL MERCHANT Neutral merchant are subject to capture outside neutral waters if they are engaged in any of the activities referred to in paragraph 67 or if it is determined as a result of visit and search or by other means, that they: (a)are carrying contraband; (b)are on a voyage especially undertaken with a view to the transport of individual passengers who are embodied in the armed forces of the enemy; (c)are operating directly under enemy control, orders, charter, employment or direction; (d)present irregular or fraudulent documents, lack necessary documents, or destroy, deface or conceal documents; (e)are violating regulations established by a belligerent within the immediate area of naval operations; or (f)are breaching or attempting to breach a blockade. Capture of a neutral merchant is exercised by taking such as prize for adjudication. 147.Goods on board neutral merchant are subject to capture only if they are contraband. 148.Contraband is defined as goods which are ultimately destined for territory under the control of the enemy and which may be susceptible for use in armed conflict. 149.In order to exercise the right of capture referred to in paragraphs 146(a) and 147, the belligerent must have published contraband lists. The precise nature of a belligerent's contraband list may vary according to the particular circumstances of the armed conflict. Contraband lists shall be reasonably specific. 150.Goods not on the belligerent's contraband list are 'free goods', that is, not subject to capture. As a minimum, 'free goods' shall include the following: (a)religious objects; (b)articles intended exclusively for the treatment of the wounded and sick and for the prevention of disease; (c)clothing, bedding, essential foodstuffs, and means of shelter for the civilian population in general, and women and children in particular, provided there is not serious reason to believe that such goods will be diverted to other purpose, or that a definite military advantage would accrue to the enemy by their substitution for enemy goods that would thereby become available for military purposes; (d)items destined for prisoners of war, including individual parcels and collective relief shipments containing food, clothing, educational, cultural, and recreational articles; (e)goods otherwise specifically exempted from capture by international treaty or by special arrangement between belligerents; and (f)other goods not susceptible for use in armed conflict, 151.Subject to paragraph 152, a neutral captured in accordance with paragraph 146 may, as an exceptional measure, be destroyed when military circumstances preclude taking or sending such a for adjudication as an enemy prize, only if the following criteria are met beforehand: (a)the safety of passengers and crew is provided for; for this purpose the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the prevailing sea and weather conditions, by the proximity of land, or the presence of another which is in a position to take them on board; (b)documents and papers relating to the captured are safeguarded; and (c)if feasible, personal effects of the passengers and crew are saved. effort should be made to avoid destruction of a captured neutral . Therefore, such destruction shall not be ordered without there being entire satisfaction that the captured can neither be sent into a belligerent port, nor diverted, nor properly released. A may not be destroyed under this paragraph for carrying contraband unless the contraband, reckoned either by value, weight, volume or freight, forms more than half the cargo. Destruction shall be subject to adjudication. The destruction of captured neutral passenger carrying civilian passengers is prohibited at sea. For the safety of the passengers, such be diverted to an appropriate port in order to complete capture provided for in paragraph 146. SECTION VII: CAPTURE OF NEUTRAL CIVIL AIRCRAFT AND GOODS Neutral civil aircraft are subject to capture outside neutral airspace if they are engaged in any of the activities in paragraph 70 or if it is determined as a result of visit and search or by any other means, that they: (a)are carrying contraband; (b)are on a flight especially undertaken with a view to the transport of individual passengers who are embodied in the armed forces of the enemy; (c)are operating directly under enemy control, orders, charter, employment or direction; (d)present irregular or fraudulent documents, lack necessary documents, or destroy, deface or conceal documents; (e)are violating regulations established by a belligerent within the immediate area of naval operations; or (f)are engaged in a breach of blockade. 154.Goods on board neutral civil aircraft are subject to capture only if they are contraband. 155.The rules regarding contraband as prescribed in paragraphs 148-150 shall also apply to goods on board neutral civil aircraft. 156.Capture is exercised by intercepting the neutral civil aircraft, ordering it to proceed to a belligerent airfield that is safe for the type of aircraft involved and reasonably accessible and, on landing and after visit and search, taking it as prize for adjudication. If there is no belligerent airfield that is safe and reasonably accessible, a neutral civil aircraft may be diverted from its declared destination. 157.As an alternative to capture, a neutral civil aircraft may, with its consent, be diverted from its declared destination. 158.If capture is exercised, the safety of passengers and crew and their personal effects must be provided for. The documents and papers relating to the prize must be safeguarded. 159.Except as provided for in paragraph 171, the provisions of this Part are not to be construed as in any way departing from the provisions of the Second Convention of 1949 and Additional Protocol I of 1977 which contain detailed rules for the treatment of the wounded, sick and shipwrecked and for transports. 160.The parties to the conflict may agree, for humanitarian purposes, to create a zone in a defined area of the sea in which only activities consistent with those humanitarian purposes are permitted. SECTION I: PROTECTED PERSONS 161.Persons on board and aircraft having fallen into the power of a belligerent or neutral shall be respected and protected. While at sea and thereafter until determination of their status, they shall be subject to the jurisdiction of the State exercising power over them. 162.Members of the crews of hospital ships may not be captured during the time they are in the service of these . Members of the crews of rescue craft may not be captured while engaging in rescue operations. 163.Persons on board other or aircraft exempt from capture listed in paragraphs 136 and 142 may not be captured. 164.Religious and personnel assigned to the spiritual and care of the wounded, sick and shipwrecked shall not be considered prisoners of war. They may, however, be retained as long as their services for the or spiritual needs of prisoners of war are needed. 165.Nationals of an enemy State, other than those specified in paragraphs 162-164, are entitled to prisoner-of-war status and may be made prisoners of war if they are: (a)members of the enemy's armed forces; (b)persons accompanying the enemy's armed forces; (c)crew members of auxiliary or auxiliary aircraft; (d)crew members of enemy merchant or civil aircraft not exempt from capture, unless they benefit from more favourable treatment under other provisions of international law; or (e)crew members of neutral merchant or civil aircraft that have taken a direct part in the hostilities on the side of the enemy, or served as an auxiliary for the enemy. Nationals of a neutral State: (a)who are passengers on board enemy or neutral or aireraft are to be released and may not be made prisoners of war unless they are members of the enemy's armed forces or have personally committed acts of hostility against the captor; (b)who are members of the crew of enemy warships or auxiliary or military aircraft or auxiliary aircraft are entitled to prisoner-of-war status and may be made prisoners of war; (c)who are members of the crew of enemy or neutral merchant or civil aircraft are to be released and may not be made prisoners of war unless the or aircraft has committed an act covered by paragraphs 60, 63, 67 or 70, or the member of the crew has personally committed an act of hostility against the captor. 167.Civilian persons other than those specified in paragraphs 162- 166are to be treated in accordance with the Fourth Convention of 1949. 168.Persons having fallen into the power of a neutral State are to be treated in accordance with Hague Conventions V and Xlll of 1907 and the Second Convention of 1949. SECTION II: TRANSPORTS 169.In order to provide maximum protection for hospital ships from the moment of the outbreak of hostilities, States may beforehand make general notification of the characteristics of their hospital ships as specified in Article 22 of the Second Convention of 1949. Such notification should include all available information on the means whereby the ship may be identified. 170.Hospital ships may be equipped with purely deflective means of defence, such as chaff and flares. The presence of such equipment should be notified. 171.In order to fulfil most effectively their humanitarian mission, hospital ships should be permitted to use cryptographic equipment. The equipment shall not be used in any circumstances to transmit intelligence data nor in any other way to acquire any military advantage. 172.Hospital ships, small craft used for rescue operations and other transports are encouraged to implement the means of identification set out in of Additional Protocol I of 1977. 173.These means of identification are intended only to facilitate identification and do not, of themselves, confer protected status. SECTION III: AIRCRAFT 174.Medical aircraft shall be protected and respected as specified in the provisions of this document. 175.Medical aircraft shall be clearly marked with the emblem of the red cross or red crescent, together with their national colours, on their lower, upper and lateral surfaces. aircraft are encouraged to implement the other means of identification set out in of Additional Protocol I of 1977 at all times. Aircraft chartered by may use the same means of identification as aircraft. Temporary aircraft which cannot, either for lack of time or because of their characteristics, be marked with the distinctive emblem should use the most effective means of identification available. 176.Means of identification are intended only to facilitate identification and do not, of themselves, confer protected status. 177.Parties to the conflict are encouraged to notify flights and conclude agreements at all times, especially in areas where control by any party to the conflict is not clearly established. When such an agreement is concluded, it shall specify the altitudes, times and routes for safe operation and should include means of identification and communications. 178.Medical aircraft shall not be used to commit acts harmful to the enemy. They shall not carry any equipment intended for the collection or transmission of intelligence data. They shall not be armed, except for small arms for self-defence, and shall only carry personnel and equipment. 179.Other aircraft, military or civilian, belligerent or neutral, that are employed in the search for, rescue or transport of the wounded, sick and shipwrecked, operate at their own risk, unless pursuant to prior agreement between the parties to the conflict. 180.Medical aircraft flying over areas which are physically controlled by the opposing belligerent, or over areas the physical control of which is not clearly established, may be ordered to land to permit inspection. aircraft shall obey any such order. 181.Belligerent aircraft shall not enter neutral airspace except by prior agreement. When within neutral airspace pursuant to agreement, aircraft shall comply with the terms of the agreement. The terms of the agreement may require the aircraft to land for inspection at a designated airport within the neutral State. Should the agreement so require, the inspection and follow-on action shall be conducted in accordance with paragraphs 182-183.