A medical aircraft is entitled to specific protection from attack, subject to the Rules of this Section of the Manual.
[Commentary]
- This Rule is based on Art. 24 of AP/I.[433] The text differs in that the wording used in Rule 75 is that a medical aircraft “is entitled to specific protection”, whereas in AP/I the phrase employed is “shall be respected and protected”. The reason for this difference is the desire to highlight the specific protection of medical aircraft (see the chapeau of the Commentary on Section K). Of course, Rule 75 does not lessen the obligation to respect and protect medical aircraft: on the contrary, its intention is to strengthen the obligation.
- The provisions applicable to the protection of medical aircraft will differ depending on the location of the aircraft. The Commentary on Rules 77, 78 and 80 distinguishes between two different situations: (a) medical aircraft operating in and over land areas physically controlled by friendly forces or in and over sea areas not physically controlled by the enemy; (b) medical aircraft operating in and over areas physically controlled by the enemy, as well as in and over those parts of the contact zone which are physically controlled by friendly forces or the physical control of which is not clearly established. This explains why Rule 75 indicates that specific protection from attack is “subject to the Rules of this Section of the Manual”.
- Rule 75 applies also in non-international armed conflict.
- Art. 24 of AP/I: “Medical aircraft shall be respected and protected, subject to the Rules of this Part.”
See also Para. 174 of the SRM/ACS: “Medical aircraft shall be protected and respected as specified in the provisions of this document.”
(a) A medical aircraft must be clearly marked with a distinctive emblem as provided by the law of international armed conflict, i.e. the Red Cross, the Red Crescent or the Red Crystal, together with its national colours, on its lower, upper and lateral surfaces.
[Commentary]
(b) A medical aircraft ought to use additional means of identification where appropriate.
[Commentary]
(c) A temporary medical aircraft which cannot – either for lack of time or because of its characteristics – be marked with the distinctive emblem, ought to use the most effective means of identification available.
[Commentary]
(d) Means of identification are intended only to facilitate identification and do not, of themselves, confer protected status.
[Commentary]
- Unlike the second sentence of Rule 72 (a), which applies to medical transports in general and which says that they “ought to be clearly marked” with the distinctive emblem, Rule 76 (a) — applicable only to medical aircraft — reflects an outright obligation to have such markings. The obligation is based on the second paragraph of Art. 36 of GC/I[434] and on Art. 18 (4) of AP/I,[435] both of which use the expression “shall”. A special dispensation is created in Rule 76 (c) for temporary medical aircraft which cannot be marked with the distinctive emblem.
- The 1929 Geneva Convention[436] originally required that medical aircraft be painted white, an obligation that was neither reproduced in the 1949 text of GC/I nor in AP/I of 1977. In addition, the 1929 Geneva Convention required that the identification appear “side by side” rather than “together with” the national colours on the aircraft’s lower and upper surfaces. In 1949, GC/I also added the requirement that the medical aircraft be marked on its lateral surfaces.
- Concerning the Red Cross, Red Crescent and Red Crystal distinctive emblems, see Commentary on Rule 72.
- Rule 76 (a) applies also in non-international armed conflict.
- Second para. of Art. 36 of GC/I: “They shall bear, clearly marked, the distinctive emblem prescribed in Article 38, together with their national colours on their lower, upper and lateral surfaces. They shall be provided with any other markings or means of identification that may be agreed upon between the belligerents upon the outbreak or during the course of hostilities.”
- Art. 18 (4) AP/I: “With the consent of the competent authority, medical units and transports shall be marked by the distinctive emblem. The ships and craft referred to in Article 22 of this Protocol shall be marked in accordance with the provisions of the Second Convention.”
This obligation is also found in Para. 175 of the SRM/ACS: “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. Medical aircraft are encouraged to implement the other means of identification set out in Annex I of Additional Protocol I of 1977 at all times. Aircraft chartered by the International Committee of the Red Cross may use the same means of identification as medical aircraft. Temporary medical 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.”
- The second paragraph of Art. 18 of the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field: “They shall be painted white and shall bear, clearly marked, the distinctive emblem prescribed in Article 19, side by side with their national colours, on their lower and upper surfaces.”
- The possibility of adding to the distinctive emblem other means of identification dates back to the second paragraph of Art. 36 of GC/I,[437] which allowed the Parties to enter into ad hoc agreements on this issue.
- Art. 18 (5) of AP/I[438] authorizes the use of several additional means of identification, besides the use of the distinctive emblem. The additional means of identification referred to are set out in Annex I of AP/I. These include a flashing blue light that no other aircraft is allowed to use; a radio message preceded by a distinctive priority (urgency) signal earmarked for all medical transports. This development arose from concerns that solely having the distinctive emblem painted on an aircraft would provide it with insufficient protection in circumstances of modern warfare that enable “beyond visual range” targeting.
- It is envisaged that, in the future, an automatic radio identification system will be developed using a transponder with digital selective calling techniques, and a Secondary Surveillance Radar (SSR) system identifying and following the course of medical aircraft.
- Belligerents Parties, by special agreement among them, may also establish for their use complementary light, radio, and electronic means of identification of medical aircraft.
- Rule 76 (b) applies also in non-international armed conflict.
- Second paragraph of Art. 36 of GC/I, see fn. 434.
- Art. 18 (5) of AP/I: “In addition to the distinctive emblem, a Party to the conflict may, as provided in Chapter III of Annex I to this Protocol, authorize the use of distinctive signals to identify medical units and transports. Exceptionally, in the special cases covered in that Chapter, medical transports may use distinctive signals without displaying the distinctive emblem.”
- This Rule restates the substance of the last sentence of Para. 175 of the SRM/ACS.[439] Both Rule 76 (c) and Para. 175 of the SRM/ACS are based to a large degree on Art. 6 (4) of Annex I to AP/I (as amended in 1993).[440]
- Rule 76 (c) takes account of the fact that some States cannot afford aircraft to be assigned exclusively for medical missions on a permanent basis.[441] Another reason why temporary aircraft are resorted to lies in the fact that a permanent medical aircraft may not be available the moment it is needed.
- Irrespective of marking, a medical aircraft assigned temporarily to medical tasks must always serve these tasks exclusively (see Rule 1 (u) and, in particular, paragraphs 7 − 9 of the Commentary on Rule 1 (u)).
- The phrase “because of its characteristics” refers to configurations which may preclude proper marking of a temporary medical aircraft with a distinctive emblem, e.g., a glass bubble or other structures of a helicopter that do not offer a suitable surface for the markings.
- According to Rule 76 (c), a temporary medical aircraft which cannot be marked with the distinctive emblem ought to use “the most effective means of identification available”. For means of identification to be effective, however, the enemy may have to be familiarized with them in advance.
- Rule 76 (c) applies also in non-international armed conflict.
- Para. 175 of the SRM/ACS, see fn. 435.
- Art. 6 (4) of Annex I (to the Protocol I): “Temporary medical aircraft which cannot, either for lack of time or because of their characteristics, be marked with the distinctive emblem, may use the distinctive signals authorized in this Chapter.”
- Para. 175.1 of the Commentary to the SRM/ACS: “The provision authorising the assignment of aircraft temporarily to medical missions was inserted to assist States who cannot procure aircraft, particularly helicopters, exclusively for medical tasks. However, aircraft temporarily assigned to medical missions must comply with all the provisions pertaining to medical aircraft while performing that mission.”
- Specific protection is conferred on a medical aircraft because of its status as such, and not because of any distinctive emblem with which it is marked. The distinctive emblem is intended only to facilitate recognition of the medical aircraft for what it is. Specific protection must be conferred on a medical aircraft as soon as it is identified as such, even if the medical aircraft does not display the distinctive emblem and employs no additional means of identification. In this respect, see Rule 72 (c) and Rule 72 (d).
- Specific protection must be granted not only to medical aircraft used by Belligerent Parties, but also to those used by the ICRC.[442] The latter may use the same means of identification.
- The improper use of the Red Cross, the Red Crescent or the Red Crystal on any aircraft is prohibited at all times (see Rule 112 (a)).
- Rule 76 (d) applies also in non-international armed conflict.
- Para. 175 of the SRM/ACS, see fn. 435.
In and over areas controlled by friendly forces, the specific protection of medical aircraft of a Belligerent Party is not dependent on the consent of the enemy.
[Commentary]
- The first paragraph of Art. 18 of the 1929 Geneva Convention[443] provided for the protection of medical aircraft, but the third paragraph of the same provision cautioned that “[i]n the absence of special and express permission, flying over the firing line, and over the zone situated in front of clearing or dressing stations, and generally over all enemy territory or territory occupied by the enemy, is prohibited.” Thus, any overflight across these areas was subject to a special and express permission. The formulation used in 1949 in the first paragraph of Art. 36 of GC/I[444] is less liberal — making any activity of a medical aircraft (irrespective of the zone of operation) dependent on an agreement between the Belligerent Parties.
- AP/I introduced different legal regimes of protection depending on the location of the medical aircraft and set out three different zones: (i) Art. 25 of AP/I[445] deals with medical aircraft in and over land areas under the physical control of friendly forces and areas not controlled by the enemy; (ii) Art. 26 of AP/I[446] deals with medical aircraft in and over those parts of the contact zone controlled by friendly forces or where control is not clearly established; and (iii) Art. 27 of AP/I[447] deals with medical aircraft over areas controlled by the enemy. The language of Rule 77 is similar to that of Art. 25 of AP/I.
- The protection of medical aircraft under Rule 77 is wholly independent of the consent of the enemy. This is different from areas covered by Rule 78 (a), where medical aircraft not obtaining prior consent fly at their own risk.
- Belligerent Parties are nevertheless encouraged to notify each other of medical flights.[448] When given, notification ought to be accompanied by a detailed flight plan (see the second sentence of Rule 78 (b)).
- The phrase “in and over areas” indicates that the specific protection of medical aircraft exists both while they are in flight and on the ground. Although in Rule 77 only “areas controlled by friendly forces” are mentioned explicitly, it applies also in and over sea areas not physically controlled by the enemy.
- The notion of control in this context does not refer to the sovereignty of a Belligerent Party over a territory, but rather to its actual domination; in other words, the fact that presence of its armed forces on the territory makes it possible to ensure the safety of the medical aircraft.
- The term “friendly forces” covers the armed forces of both the Belligerent Party and its co-belligerents.
- Rule 77 applies also in non-international armed conflict.
- First paragraph of Art. 18 of the 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field: “Aircraft used as means of medical transport shall enjoy the protection of the Convention during the period in which they are reserved exclusively for the evacuation of wounded and sick and the transport of medical personnel and material.”
- First paragraph of Art. 36 of GC/I: “Medical aircraft, that is to say, aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment, shall not be attacked, but shall be respected by the belligerents, while flying at heights, times and on routes specifically agreed upon between the belligerents concerned”.
- Art. 25 of AP/I (“Medical aircraft in areas not controlled by an adverse Party”): “In and over land areas physically controlled by friendly forces, or in and over sea areas not physically controlled by an adverse Party, the respect and protection of medical aircraft of a Party to the conflict is not dependent on any agreement with an adverse Party. For greater safety, however, a Party to the conflict operating its medical aircraft in these areas may notify the adverse Party, as provided in Article 29, in particular when such aircraft are making flights bringing them within range of surface-to-air weapons systems of the adverse Party.”
- Art. 26 of AP/I (“Medical aircraft in contact or similar zones”): “(1) ln and over those parts of the contact zone which are physically controlled by friendly forces and in and over those areas the physical control of which is not clearly established, protection for medical aircraft can be fully effective only by prior agreement between the competent military authorities of the Parties to the conflict, as provided for in Article 29. Although, in the absence of such an agreement, medical aircraft operate at their own risk, they shall nevertheless be respected after they have been recognized as such. (2) ‘Contact zone’ means any area on land where the forward elements of opposing forces are in contact with each other, especially where they are exposed to direct fire from the ground.”
- Art. 27 of AP/I (“Medical aircraft in areas controlled by an adverse Party”): “(1) The medical aircraft of a Party to the conflict shall continue to be protected while flying over land or sea areas physically controlled by an adverse Party, provided that prior agreement to such flights has been obtained from the competent authority of that adverse Party. (2) A medical aircraft which flies over an area physically controlled by an adverse Party without, or in deviation from the terms of, an agreement provided for in paragraph 1, either through navigational error or because of an emergency affecting the safety of the flight, shall make every effort to identify itself and to inform the adverse Party of the circumstances. As soon as such medical aircraft has been recognized by the adverse Party, that Party shall make all reasonable efforts to give the order to land or to alight on water, referred to in Article 30, paragraph 1, or to take other measures to safeguard its own interests, and, in either case, to allow the aircraft time for compliance, before resorting to an attack against the aircraft.”
- Second sentence of Art. 25 of AP/I, see fn. 445.
See also Para. 177 of the SRM/ACS: “Parties to the conflict are encouraged to notify medical 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.”
(a) In and over areas physically controlled by the enemy, as well as in and over those parts of the contact zone which are physically controlled by friendly forces or the physical control of which is not clearly established, the protection of medical aircraft can be fully effective only by virtue of prior consent obtained from the enemy. Although, in the absence of such consent, medical aircraft in the contact zone operate at their own risk, they must nevertheless be respected once they have been identified as such.
[Commentary]
(b) The consent of the enemy as per paragraph (a) has to be sought in advance (or immediately prior to the commencement of the operation of a medical aircraft) by a Belligerent Party employing a medical aircraft. The request for consent ought to be accompanied by a detailed flight plan (as set forth in the International Civil Aviation Organization Flight Plan form).
[Commentary]
(c) When given, consent must be express. Consent for activities consistent with the aircraft’s medical status, e.g. evacuation of the wounded, sick or shipwrecked, and transportation of medical personnel or material, ought not to be refused, unless on reasonable grounds.
[Commentary]
- This Rule was engendered by discussions by the Group of Experts concerning the scope and application of Art. 26 (1) and Art. 27 (1)[449] of AP/I.[450] Rule 78 (a), as a practical matter, applies the same principle in and over areas physically controlled by the enemy as well as in and over the contact zone, whereas both Art. 26 (1) of AP/I and Art. 27 (1) of AP/I distinguish between these two categories. However, the distinction between areas physically controlled by the enemy and the contact zone may be blurred by the pace of ground and air operations. A majority of the Group of Experts considered that Belligerent Parties must take this factor into consideration when contemplating operation of medical aircraft over such areas in order to assist in their protection.
- The purpose of Rule 78 (a) is to clarify that Belligerent Parties may not be blamed if a medical aircraft — not identified as such and flying without prior agreement in these defined areas — is attacked by mistake. It ought to be emphasized, however, that medical aircraft operating in and over these areas without consent do not lose their specific protection, but rather risk being shot down if they are not identified as medical aircraft.
- A medical aircraft which — either through navigational error or because of an emergency affecting the safety of the flight — enters an area defined in Rule 78 (a) without (or in deviation from the terms of) an agreement, must make every effort to identify itself, to inform the enemy of the circumstances, and to indicate its submission to the enemy air traffic instructions. Once a medical aircraft has been identified as such, the enemy must not attack it, although it is entitled to order the aircraft to divert, to proceed along a specific route, or to land for inspection. Non-compliance with the order may subject the aircraft to attack. However, sufficient time must be allowed to enable the aircraft to comply with the order before it is attacked (see Art. 27 (2) of AP/I).[451]
- The contact zone, as defined in Art. 26 (2) of AP/I,[452] means any area on land where the forward elements of opposing forces are in contact with each other, especially where they are exposed to direct fire from the ground. The phrase direct fire from the ground excludes fire coming from aircraft.
- Rule 78 (a) applies to “those parts of the contact zone which are physically controlled by friendly forces or the physical control of which is not clearly established”. Control over the contact zone is not clearly established where, e.g., the opposing forces may be entangled as a result of a series of assaults and repulses.
- As explained in paragraph 5 of the Commentary on Rule 77, the phrase “in and over areas” indicates that the special protection of medical aircraft exists both while they are in flight and on the ground.
- Rule 78 (a) applies also in non-international armed conflict.
- Art. 26 (1) of AP/I, see fn. 446.
- Art. 27 (1) of AP/I, see fn. 447.
- Art. 27 (2) of AP/I, see fn. 447.
- Art. 26 (2) of AP/I, see fn. 446.
- The requirement that the enemy’s consent has to be sought in advance is implicit in the reference to “prior agreement” which is made in Art. 29 (1) of AP/I.[453] The reference to the ICAO flight plan is derived from Art. 13 of Annex I to AP/I (as amended in 1993).[454]
- The consequence of a failure to obtain the enemy’s consent is that the medical aircraft would fly at its own risk for as long as it is not identified as such.
- The ICAO Flight Plan form includes fields on aircraft identification, markings, routes and other parameters.[455] It was therefore felt sufficient to require here the submission of a detailed ICAO Flight Plan, without adding other details (as is done in Art. 29 (1) of AP/I). No doubt, the Flight Plan filed ought to be as precise as possible, and it ought to include departure and arrival times, flight path, and altitude. Other elements may be added.
- Rule 78 (b) applies also in non-international armed conflict.
- Art. 29 (1) of AP/I (“Notifications and agreements concerning medical aircraft”): “Notifications under Article 25, or requests for prior agreement under Articles 26, 27, 28 (paragraph 4), or 31 shall state the proposed number of medical aircraft, their flight plans and means of identification, and shall be understood to mean that every flight will be carried out in compliance with Article 28.”
- Art. 13 of Annex I to AP/I (“Flight plans”): “The agreements and notifications relating to flight plans provided for in Article 29 of the Protocol shall as far as possible be formulated in accordance with procedures laid down by the International Civil Aviation Organization.”
- ICAO, Rules of the Air, Annex 2 to the Chicago Convention on International Civil Aviation, Chapter 3.3 on “flight plans”.
- The Belligerent Party receiving a request for consent ought to respond as quickly as possible. It may give a positive or negative response. It may also propose alternative and/or additional conditions.
- Rule 78 (c) makes it clear that Belligerent Parties may not refuse consent except on reasonable grounds. This is due to the paramount role that medical aircraft play in rescuing the wounded and sick, and the considerable risk that they would run by operating without consent. In this context, reasonable grounds for refusal of consent ought to be interpreted as imperative reasons, particularly of a security nature, preventing a medical flight over an area.
- The notion of “activities consistent with the aircraft’s medical status” means normal medical functions. Apart from “acts harmful to the enemy” (see Rule 83), these normal functions exclude searching for the wounded and sick as well as combat search-and-rescue operations (see Rule 86).
- Rule 78 (c) applies also in non-international armed conflict.
Any conditions of consent obtained from the enemy for the protection of a medical aircraft must be adhered to strictly.
[Commentary]
- The obligation to adhere to conditions of consent is a logical corollary to Rule 78. Rule 79 is intended to provide the clarity necessary for a well-functioning regime of protection.
- Any medical aircraft departing from the conditions of consent obtained from the enemy flies at its own risk as long as it has not been identified as a medical aircraft (second sentence of Rule 78 (a)).
- The obligation to comply with the conditions of consent set by the enemy is far wider than the prohibition imposed on medical aircraft not to engage in acts harmful to the enemy (see Rule 83). The enemy’s consent may be contingent on technical matters such as a specific route or altitude. Even such technical conditions must be strictly adhered to.
- Rule 79 applies also in non-international armed conflict.
(a) While flying over an area covered in Rule 78 (a), medical aircraft may be ordered to land or to alight on water to permit inspection. Medical aircraft must obey any such order.
[Commentary]
(b) If inspection reveals that the medical aircraft has been engaged in activities consistent with its medical status, it must be authorized to continue its flight without delay.
[Commentary]
(c) However, if the medical aircraft has engaged in activities inconsistent with its medical status, or if it has flown without or in breach of a prior agreement, then it may be seized. Its occupants must then be treated in accordance with the relevant rules of the law of international armed conflict.
[Commentary]
(d) Any aircraft seized which had been assigned as a permanent medical aircraft may be used thereafter only as a medical aircraft.
[Commentary]
- This Rule is based on Art. 30 (1) AP/I[456] and on Para. 180 of the SRM/ACS[457] , except that — as noted in the Commentary on Rule 78 (a) — this Manual applies the same legal regime to flights by medical aircraft over areas physically controlled by the enemy as well as those over parts of the contact zone which are physically controlled by friendly forces or the physical control of which is not clearly established.
- A medical aircraft may be ordered to land, even if the flight has the consent of the enemy (and, a fortiori, if it does not). An order to land must be obeyed. Otherwise, it can result in the medical aircraft being forced to land and, as a last resort, being attacked.
- When ordered to land, all steps must be taken to ensure that the medical aircraft can land under adequate safety conditions. “Alight[ing] on water” refers only to hydroplanes, amphibious aircraft, or other fixed or rotary-winged aircraft capable of a water landing.
- Medical aircraft may only be ordered to land or alight on water for the clearly specified reason of permitting inspection. The inspection has to be commenced without delay and be conducted expeditiously. This obligation to proceed quickly is due to the fact that the state of health of the wounded and sick aboard the aircraft must not be adversely affected by the inspection. For the same reason, the inspecting Belligerent Party must not remove the wounded and sick from the aircraft unless this is essential for the inspection.[458] Shipwrecked who are not wounded or sick may be removed from the aircraft. If they are combatants, they can be detained as POWs.
- Rule 80 (a) applies also in non-international armed conflict.
- Art. 30 (1) of AP/I: “Medical aircraft flying over areas which are physically controlled by an adverse Party, or over areas the physical control of which is not clearly established, may be ordered to land or to alight on water, as appropriate, to permit inspection in accordance with the following paragraphs. Medical aircraft shall obey any such order.”
- Para. 180 of the SRM/ACS: “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. Medical aircraft shall obey any such order.”
- Art. 30 (2) of AP/I: “If such an aircraft lands or alights on water, whether ordered to do so or for other reasons, it may be subjected to inspection solely to determine the matters referred to in paragraphs 3 and 4. Any such inspection shall be commenced without delay and shall be conducted expeditiously. The inspecting Party shall not require the wounded and sick to be removed from the aircraft unless their removal is essential for the inspection. That Party shall in any event ensure that the condition of the wounded and sick is not adversely affected by the inspection or by the removal.”
- This Rule is derived from Art. 30 (3) of AP/I.[459]
- On the notion of “activities consistent with the aircraft’s medical status”, see paragraph 3 of the Commentary on Rule 78 (c).
- Rule 80 (b) applies also in non-international armed conflict.
- Art. 30 (3) of AP/I: “If the inspection discloses that the aircraft: (a) is a medical aircraft within the meaning of Article 8, sub-paragraph (j), (b) is not in violation of the conditions prescribed in Article 28, and (c) has not flown without or in breach of a prior agreement where such agreement is required, the aircraft and those of its occupants who belong to the adverse Party or to a neutral or other State not a Party to the conflict shall be authorized to continue the flight without delay.”
- Rule 80 (c) is derived from Art. 30 (4) of AP/I.[460]
- The decision to seize a medical aircraft ought to be taken with due consideration of the reasons for the aircraft’s divergence from activities consistent with its medical status or of the reasons why the aircraft was flying without or in breach of a prior agreement where such agreement is required. For example, a Belligerent Party ought to carefully consider authorizing a medical aircraft to continue its flight if it has not wilfully committed a breach, but was the victim of damage, technical problems or adverse weather conditions.
- If seizure of medical aircraft takes place, the occupants (a term that is broad enough to cover different categories of persons) must be treated in accordance with the law of international armed conflict. Thus, the wounded and sick must get proper medical treatment, and medical personnel cannot be detained as POWs. Such medical personnel may be, however, be retained (see paragraph 4 of the Commentary on Rule 87).[461] However, if a Belligerent Party is unable to ensure medical treatment as required by the condition of the wounded and sick on board a medical aircraft, it may have to allow the medical aircraft to continue on its way.
- There is no State practice concerning any requirement of prize proceedings with respect to seized medical aircraft.
- Rule 80 (c) applies also in non-international armed conflict, except that — for the purposes of this Manual — “seizure” is a construct of the law of international armed conflict. In a non-international armed conflict, the fate of the medical aircraft engaged in activities inconsistent with its medical status, will be based on the domestic legal system.
- Art. 30 (4) of AP/I: “If the inspection discloses that the aircraft: (a) is not a medical aircraft within the meaning of Article 8, sub-paragraph (j), (b) is in violation of the conditions prescribed in Article 28, or (c) has flown without or in breach of a prior agreement where such agreement is required, the aircraft may be seized. Its occupants shall be treated in conformity in conformity with the relevant provisions of the Conventions and of this Protocol. Any aircraft seized which had been assigned as a permanent medical aircraft may be used thereafter only as a medical aircraft.”
- Art. 33 of GC/III: “Members of the medical personnel and chaplains while retained by the Detaining Power with a view to assisting prisoners of war, shall not be considered as prisoners of war. They shall, however, receive as a minimum the benefits and protection of the present Convention, and shall also be granted all facilities necessary to provide for the medical care of, and religious ministration to prisoners of war. They shall continue to exercise their medical and spiritual functions for the benefit of prisoners of war, preferably those belonging to the armed forces upon which they depend, within the scope of the military laws and regulations of the Detaining Power and under the control of its competent services, in accordance with their professional etiquette. They shall also benefit by the following facilities in the exercise of their medical or spiritual functions: (a) They shall be authorized to visit periodically prisoners of war situated in working detachments or in hospitals outside the camp. For this purpose, the Detaining Power shall place at their disposal the necessary means of transport. (b) The senior medical officer in each camp shall be responsible to the camp military authorities for everything connected with the activities of retained medical personnel. For this purpose, Parties to the conflict shall agree at the outbreak of hostilities on the subject of the corresponding ranks of the medical personnel, including that of societies mentioned in Article 26 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. This senior medical officer, as well as chaplains, shall have the right to deal with the competent authorities of the camp on all questions relating to their duties. Such authorities shall afford them all necessary facilities for correspondence relating to these questions. (c) Although they shall be subject to the internal discipline of the camp in which they are retained, such personnel may not be compelled to carry out any work other than that concerned with their medical or religious duties. During hostilities, the Parties to the conflict shall agree concerning the possible relief of retained personnel and shall settle the procedure to be followed. None of the preceding provisions shall relieve the Detaining Power of its obligations with regard to prisoners of war from the medical or spiritual point of view.”
- This Rule is based on Art. 30 (4) of AP/I.[462]
- If a permanent medical aircraft is seized by the enemy, it may not be used for purposes other than medical ones. This prohibition lasts until the end of the armed conflict.
- If the inspection discloses that the aircraft is only a temporary medical aircraft, it may then be used for other purposes provided that any distinctive emblem is removed and any additional means of identification is no longer used.
- Rule 80 (d) does not apply in non-international armed conflict (but see paragraph 5 of the Commentary on Rule 80 (c)).
- Art. 30 (4) of AP/I, see fn. 460.
A medical aircraft must not possess or employ equipment to collect or transmit intelligence harmful to the enemy. It may, however, be equipped with encrypted communications equipment intended solely for navigation, identification and communication consistent with the execution of its humanitarian mission.
[Commentary]
- This Rule is partly based on Art. 28 (2) of AP/I, which stipulates that medical aircraft must not be used to collect or transmit intelligence data and must not carry any equipment intended for such purposes.[463]
- Rule 81 prohibits both the possession and the use of equipment to collect or transmit intelligence harmful to the enemy (“possess or employ”). The mere possession of equipment for the purpose of collecting or transmitting intelligence harmful to the enemy is prohibited because it is difficult to prove in practice that an aircraft actually collected or transmitted such information.
- Several declarations made upon ratification of AP/I by Contracting Parties (e.g., Ireland and the United Kingdom) were to the effect that Art. 28 (2) of AP/I does not preclude the presence on board of communications equipment and encryption materials or the use thereof solely to facilitate navigation, identification or communication in support of medical transportation.[464]
- Furthermore, the UK Manual expressly mentions (Para. 12.120.1) that the presence of encryption equipment in a medical aircraft is not prohibited: “The presence of communications and encryption equipment in an aircraft operating as a medical aircraft is not precluded. Nor is the use of such equipment wholly to facilitate navigation, identification, and communication in support of the operation of medical aircraft. Neither such presence nor such use negates the protection to which the medical aircraft is entitled.” A majority of the Group of Experts held that this permission is in conformity with contemporary State practice. Of course, the encryption equipment must not be used in any circumstances to transmit intelligence data harmful to the enemy.
- Rule 81 applies also in non-international armed conflict.
- Art. 28 (2) of AP/I: “Medical aircraft shall not be used to collect or transmit intelligence data and shall not carry any equipment intended for such purposes. They are prohibited from carrying any persons or cargo not included within the definition in Article 8, sub-paragraph (f). The carrying on board of the personal effects of the occupants or of equipment intended solely to facilitate navigation, communication or identification shall not be considered as prohibited.”
- E.g., statement made by the UK upon ratification of AP/I in respect of Art. 28 (2) of AP/I: “Given the practical need to make use of non-dedicated aircraft for medical evacuation purposes, the UK does not interpret this paragraph as precluding the presence on board of communications equipment and encryption materials or the use thereof solely to facilitate navigation, identification or communication in support of medical transportation as defined in Art. 8 (f).” Ireland made an identical declaration.
A medical aircraft may be equipped with deflective means of defence (such as chaff or flares) and carry light individual weapons necessary to protect the aircraft, the medical personnel and the wounded, sick or shipwrecked on board. Carrying of the individual weapons of the wounded, sick or shipwrecked during their evacuation does not entail loss of protection.
[Commentary]
- The text of Rule 82 is largely consistent with the language of Art. 28 (3) of AP/I.[465] A notable point of divergence is that — in addition to permitting light individual weapons — Rule 82 allows medical aircraft to carry deflective means of defence. This authorization of deflective means of defence was included in Para. 170 of the SRM/ACS regulating hospital ships.[466] Even though there is no similar provision in the SRM/ACS regarding medical aircraft, a majority of the Group of Experts believed that it was a logical step to apply by analogy the same regime to medical aircraft, since there are no significant differences between hospital ships and medical aircraft in this context.
- When the enemy’s consent for the flight of a medical aircraft is required (see Rule 78), the enemy ought to be informed of the presence on board of deflective means of defence.
- Medical aircraft may carry light individual weapons collected from the wounded, sick and ship-wrecked, and not yet handed over to the proper service authority. It is also authorized to carry light individual weapons necessary to enable medical personnel on the medical aircraft to defend themselves and the wounded, sick and shipwrecked in their charge.
- For the meaning of the expression “light individual weapons”, see Commentary on Rule 74 (c) (i).
- Rule 82 ought to be understood as prohibiting medical aircraft from carrying any other armaments. A medical aircraft carrying machine guns or any other heavy weaponry, which may not easily be transported by an individual, forfeits the protection as a medical aircraft and loses the right to display the distinctive emblem. Independently of legal considerations, a machine gun protruding from a helicopter and clearly visible from the ground would cancel out the protection that is sought from the use of the distinctive emblem because it may be perceived as an offensive aircraft. In fact, the display of an offensive weapon alongside the protective emblem might weaken the protective effect of the distinctive emblem generally in the entire zone of the conflict.
- Rule 82 applies also in non-international armed conflict.
- Art. 28 (3) of AP/I: “Medical aircraft shall not carry any armament except small arms and ammunition taken from the wounded, sick and shipwrecked on board and not yet handed to the proper service, and such light individual weapons as may be necessary to enable the medical personnel on board to defend themselves and the wounded, sick and shipwrecked in their charge.”
- Para. 170 of the SRM/ACS: “Hospital ships may be equipped with purely deflective means of defence, such as chaff and flares. The presence of such equipment should be notified.”
Subject to Rule 74, a medical aircraft loses its specific protection from attack if it is engaged in acts harmful to the enemy.
[Commentary]
- This Rule is based on Para. 178 of the SRM/ACS.[467] It is a summary of the restrictions posed on operations of medical aircraft by Art. 28 (1) of AP/I.[468]
- Rule 83 subjects itself to Rule 74, which details the conditions under which medical transports — which include medical aircraft — lose their specific protection from attack. Reference must be especially made to the use of the phrase “acts harmful to the enemy” (see Rule 74 (a)), and to the obligation of issuing warnings (see Rule 74 (b)).
- Rule 83 applies also in non-international armed conflict.
- Para. 178 of the SRM/ACS: “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 medical personnel and equipment.”
- Art. 28 (1) of AP/I: “The Parties to the conflict are prohibited from using their medical aircraft to attempt to acquire any military advantage over an adverse Party. The presence of medical aircraft shall not be used in an attempt to render military objectives immune from attack.”
Except by prior agreement with a Neutral, a belligerent medical aircraft must not fly over or land in the territory of that Neutral, unless it is exercising the right of transit passage through straits used for international navigation or the right of archipelagic sea lanes passage.
[Commentary]
- This Rule is based on Art. 31 (1) of AP/I[469] and on Para. 181 of the SRM/ACS.[470] The principle[471] is that prior agreement is required for the protection of belligerent medical aircraft in and over neutral territory. There are two exceptions: (i) the right of transit passage over straits used for international navigation (including the approach thereto); and (ii) the right of archipelagic sea lanes passage. These two are vouch-safed respectively by Art. 38 (1) of UNCLOS[472] and by Art. 53 (1)–(3) of UNCLOS.[473]
- The agreement referred to in Rule 84 is between one or more Belligerent Party(ies), on the one hand, and the Neutral, on the other, even without the enemy’s participation to the agreement.
- When operating within neutral airspace pursuant to an agreement, belligerent medical aircraft must comply with the terms of the agreement. These terms may require the aircraft to land for inspection at a designated airport within the Neutral.
- Rule 84 does not apply in non-international armed conflict as the law of neutrality only applies in international armed conflicts.
- Art. 31 (1) of AP/I: “Except by prior agreement, medical aircraft shall not fly over or land in the territory of a neutral or other State not a Party to the conflict. However, with such an agreement, they shall be respected throughout their flight and also for the duration of any calls in the territory. Nevertheless they shall obey any summons to land or to alight on water, as appropriate.”
- Para. 181 of the SRM/ACS: “Belligerent medical aircraft shall not enter neutral airspace except by prior agreement. When within neutral airspace pursuant to agreement, medical 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.”
- It ought to be noted, however, that Art. 37 of GC/I gave Belligerent Parties the right to let their medical aircraft fly over neutral territory without agreement. The Neutral could only impose conditions on the passage.
Paragraph 1 and 2 of Art. 37 of GC/I: “Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call. They shall give the neutral Powers previous notice of their passage over the said territory and obey all summons to alight, on land or water. They will be immune from attack only when flying on routes, at heights and at times specifically agreed upon between the Parties to the conflict and the neutral Power concerned. The neutral Powers may, however, place conditions or restrictions on the passage or landing of medical aircraft on their territory. Such possible conditions or restrictions shall be applied equally to all Parties to the conflict. …”
- Art. 38 (1) of UNCLOS (“Right of transit passage”): “In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.”
- Art. 53. (1)–3 of UNCLOS (“Right of archipelagic sea lanes passage): “(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. (2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. (3) Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”
(a) Should a belligerent medical aircraft, in the absence of a prior agreement with the Neutral or in deviation from the terms of an agreement, enter the neutral airspace, either through navigational error or because of an emergency affecting the safety of the flight, it must make every effort to give notice and to identify itself. Once the aircraft is recognized as a medical aircraft by the Neutral, it must not be attacked but may be required to land for inspection. Once it has been inspected, and if it is determined in fact to be a medical aircraft, it must be allowed to resume its flight.
[Commentary]
(b) If the inspection reveals that the aircraft is not a medical aircraft, it may be seized. Any combatants on board will be interned by the Neutral in accordance with Rule 170 (c).
[Commentary]
- This Rule summarizes the substance of Art. 31 (2) and Art. 31 (3) of AP/I[474] and is an almost verbatim restatement of Para. 182 of the SRM/ACS.[475] It takes due note of the fact that there may be circumstances where a Belligerent Party did not conclude an agreement with a Neutral, because its medical aircraft was never intended to enter the neutral airspace. There are, however, only two possible ways of unexpected entry which bring Rule 85 (a) into application: (i) navigational error; or (ii) an emergency affecting the safety of the flight.
- In case the Neutral intercepts or diverts the belligerent medical aircraft, it ought — as far as military considerations permit — to observe the guidance in the Manual Concerning Interception of Civil Aircraft issued by ICAO.[476]
- Art. 31 (3) of AP/I provides that “inspection shall be commenced without delay and shall be con-ducted expeditiously. The inspecting Party shall not require the wounded and sick of the Party operating the aircraft to be removed from it unless their removal is essential for the inspection. The inspecting Party shall in any event ensure that the condition of the wounded and sick is not adversely affected by the in-spection or the removal.”
- The determination of whether or not an aircraft is in fact a medical aircraft needs to be based on Rule 1 (u), i.e. the aircraft needs to be exclusively assigned to “aerial transportation or treatment of wounded, sick, or shipwrecked persons, and/or the transport of medical personnel and medical equipment or sup-plies.”
- If it turns out on inspection that the aircraft is a belligerent medical aircraft, the resumption of the flight must be permitted and reasonable facilities must be given for the continuation of the flight. All the occu-pants of medical aircraft are entitled to resume their flight including wounded, sick, and shipwrecked mili-tary personnel. See Art. 40 of GC/II[477] and Art. 31 (3) of AP/I[478] (both GC/II and AP/I for shipwrecked, wounded, and sick).
- If wounded, sick, or shipwrecked combatants are left behind — e.g., because the captain of the medi-cal aircraft considers the continuation of the flight detrimental to their health — the Neutral must intern them until the end of hostilities, unless otherwise agreed between the Neutral and the Belligerent Parties (that is to say, including the enemy). See the third paragraph of Art. 37 of GC/I[479] (for wounded and sick); the third paragraph of Art. 40 of GC/II;[480] and Art. 31 (4) of AP/I.[481]
- Rule 85 (a) does not apply in non-international armed conflict since the law of neutrality only applies in international armed conflict.
- Art. 31 of AP/I: “(2) Should a medical aircraft, in the absence of an agreement or in deviation from the terms of an agreement, fly over the territory of a neutral or other State not a Party to the conflict, either through navigational error or because of an emergency affecting the safety of the flight, it shall make every effort to give notice of the flight and to identify itself. As soon as such medical aircraft is recognized, that State shall make all reasonable efforts to give the order to land or to alight on water referred to in Article 30, paragraph 1, or to take other measures to safeguard its own interests, and, in either case, to allow the aircraft time for compliance, before resorting to an attack against the aircraft. (3) If a medical aircraft, either by agreement or in the circumstances mentioned in paragraph 2, lands or alights on water in the territory of a neutral or other State not Party to the conflict, whether ordered to do so or for other reasons, the aircraft shall be subject to inspection for the purposes of determining whether it is in fact a medical aircraft. The inspection shall be commenced without delay and shall be conducted expeditiously. The inspecting Party shall not require the wounded and sick of the Party operating the aircraft to be removed from it unless their removal is essential for the inspection. The inspecting Party shall in any event ensure that the condition of the wounded and sick is not adversely affected by the inspection or the removal. If the inspection discloses that the aircraft is in fact a medical aircraft, the aircraft with its occupants, other than those who must be detained in accordance with the rules of international law applicable in armed conflict, shall be allowed to resume its flight, and reasonable facilities shall be given for the continuation of the flight. If the inspection discloses that the aircraft is not a medical aircraft, it shall be seized and the occupants treated in accordance with paragraph 4.”
- Para. 182 of the SRM/ACS: “Should a medical aircraft, in the absence of an agreement or in deviation from the terms of an agreement, enter neutral airspace, either through navigational error or because of an emergency affecting the safety of the flight, it shall make every effort to give notice and to identify itself. Once the aircraft is recognized as a medical aircraft by the neutral State, it shall not be attacked but may be required to land for inspection. Once it has been inspected, and if it is determined in fact to be a medical aircraft, it shall be allowed to resume its flight.”
- Para. 182.1 of the Commentary on the SRM/ACS: “Interception and diversion for landing should follow ICAO procedures.”
- Art. 40 of GC/II (“Medical transports”): “Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may fly over the territory of neutral Powers, land thereon in case of necessity, or use it as a port of call. They shall give neutral Powers prior notice of their passage over the said territory, and obey every summons to alight, on land or water. They will be immune from attack only when flying on routes, at heights and at times specifically agreed upon between the Parties to the conflict and the neutral Power concerned.
The neutral Powers may, however, place conditions or restrictions on the passage or landing of medical aircraft on their territory. Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.
Unless otherwise agreed between the neutral Powers and the Parties to the conflict, the wounded, sick or shipwrecked who are disembarked with the consent of the local authorities on neutral territory by medical aircraft shall be detained by the neutral Power, where so required by international law, in such a manner that they cannot again take part in operations of war. The cost of their accommodation and internment shall be borne by the Power on which they depend.”
- Art. 31 (3) of AP/I, see fn. 474.
- Third paragraph of Art. 37 of GC/I: “Unless agreed otherwise between the neutral Power and the Parties to the conflict, the wounded and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shall be detained by the neutral Power, where so required by international law, in such a manner that they cannot again take part in operations of war. The cost of their accommodation and internment shall be borne by the Power on which they depend.“
- Third paragraph of Art. 40 of GC/II: “Unless otherwise agreed between the neutral Powers and the Parties to the conflict, the wounded, sick or shipwrecked who are disembarked with the consent of the local authorities on neutral territory by medical aircraft shall be detained by the neutral Power, where so required by international law, in such a manner that they cannot again take part in operations of war. The cost of their accommodation and interment shall be borne by the Power on which they depend.“
- Art. 31 (4) of AP/I: “The wounded, sick and shipwrecked disembarked, otherwise than temporarily, from a medical aircraft with the consent of the local authorities in the territory of a neutral or other State not a Party to the conflict shall, unless agreed otherwise between that State and the Parties to the conflict, be detained by that State where so required by the rules of international law applicable in armed conflict, in such a manner that they cannot again take part in the hostilities. The cost of hospital treatment and internment shall be borne by the State to which those persons belong.”
- This Rule is to a large extent based on the substance of Art. 31 (3)[482] and Art. 31 (4) of AP/I,[483] as well as on Para. 183 of the SRM/ACS.[484]
- When an inspection reveals that the aircraft is not a medical aircraft, two separate issues arise: (i) whether the aircraft is to be seized by the Neutral; and (ii) whether any combatants on board are to be interned by the Neutral.
- The issue of the seizure of such an aircraft by the Neutral is contingent on whether the Neutral and the Belligerent Parties[485] are or are not Contracting Parties to AP/I (see, respectively, paragraph 4 and paragraph 5 of the Commentary on this Rule).
- If the Neutral and the Belligerent Parties are bound by AP/I, the Neutral must seize the aircraft pursuant to Art. 31 (3) of AP/I, if it is in fact not a medical aircraft.
- If the Neutral or one of the Belligerent Parties are not bound by AP/I, the Neutral “may” according to Rule 85 (b) seize an aircraft. In case the Neutral is not a Contracting Party to AP/I, and the aircraft turns out to be a belligerent military aircraft, Rule 170 (c) applies. If the aircraft turns out to be a civilian aircraft, a Neutral which is not a Contracting Party to AP/I is at liberty to let it resume its flight.
- Irrespective of the question whether or not the aircraft is to be seized by the Neutral, there still remains the separate issue as to whether the Neutral is obliged to intern the occupants of an aircraft, which is in fact not a belligerent medical aircraft. Whether or not the aircraft is seized, the Neutral must intern all combatants on board who are not wounded, sick or shipwrecked. This applies primarily to combatants who are capable of engaging in hostilities as soon as they are released.[486] However, wounded, sick, and shipwrecked combatants must also be interned, unless otherwise agreed between the Neutral and the Belligerent Parties.
- As far as wounded, sick and shipwrecked combatants are concerned, they must also be interned, unless otherwise agreed between the Neutral and the Belligerent Parties (including the enemy).[487] See the third paragraph of Art. 37 of GC/I[488] and the third paragraph of Art. 40 of GC/II,[489] as well as Art. 31 (4) of AP/I.[490]
- Rule 85 (b) does not apply in non-international armed conflict, as the law of neutrality only applies in international armed conflict.
- Art. 31 (3) of AP/I, see fn. 474.
- Art. 31 (4) of AP/I, see fn. 481.
- Para. 183 of the SRM/ACS: “If the inspection reveals that the aircraft is not a medical aircraft, it may be captured, and the occupants shall, unless agreed otherwise between the neutral State and the parties to the conflict, be detained in the neutral State where so required by the rules of international law applicable in armed conflict, in such a manner that they cannot again take part in the hostilities.”
- Third paragraph of Art. 2 common to the Geneva Conventions: “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”
- Art. 11 of the 1907 Hague Convention (V): “A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war. It may keep them in camps and even confine them in fortresses or in places set apart for this purpose. It shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission.”
- Art. 14 of the 1907 Hague Convention (V): “A neutral Power may authorize the passage over its territory of the sick and wounded belonging to the belligerent armies, on condition that the trains bringing them shall carry neither personnel nor war material. In such a case, the neutral Power is bound to take whatever measures of safety and control are necessary for the purpose. The sick or wounded brought under the these conditions into neutral territory by one of the belligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking part again in the military operations. The same duty shall devolve on the neutral State with regard to wounded or sick of the other army who may be committed to its care.”
Whereas Art. 14 of the 1907 Hague Convention (V) was limited to the wounded and sick, this has now been extended to the shipwrecked. See the third paragraph of Art. 37 of GC/I (see fn. 479); the third paragraph of Art. 40 of GC/II (see fn. 480) and Art. 31 (4) of AP/I (see fn. 481).
- Third paragraph of Art. 37 of GC/I, see fn. 479.
- Third paragraph of Art. 40 of GC/II, see fn. 480.
- Art. 31 (4) of AP/I, see fn. 481.
(a) Search-and-rescue aircraft used to recover military personnel, even if they are not military aircraft, are not entitled to protection.
[Commentary]
(b) Medical aircraft must not be used to search for the wounded, sick and shipwrecked within areas of combat operations, unless pursuant to prior consent of the enemy. If medical aircraft nevertheless operate for such purposes they do so at their own risk.
[Commentary]
- Members of a commando operation or long-range reconnaissance patrols in enemy-held territory, surrounded infantryman, stragglers or aircrews who have been “downed” on territory under the control of the enemy and who have not manifested a wish to surrender are lawful targets. Under the law of international armed conflict, the use of military means to recover and rescue them is a combat activity. The enemy is therefore allowed to attack the rescuers or to impede or prevent their rescue.
- Search-and-rescue aircraft used to recover military personnel are not entitled to any protection. It is possible that the Belligerent Party launching the search-and-rescue is conducting that operation impartially, i.e. saving also enemy personnel. This does not lend the operation immunity from attack.
- Civilian aircraft used for search-and-rescue operations of civilians (e.g., skiers or mariners), while not enjoying specific protection, are civilian aircraft and therefore enjoy general protection.
- With regard to wounded, sick and shipwrecked, Belligerent Parties must take all possible measures to search, and collect them (see Rule 16 (a)). However, see also Rule 86 (b).
- This Rule is based on Art. 28 (4) of AP/I.[491]
- Medical aircraft may be used to search for the wounded, sick and shipwrecked over areas controlled by friendly forces (see Rule 77). During such operations, and as long as they are above such areas, they continue to enjoy the specific protection to which medical aircraft are entitled.
- The term “areas of combat operations” relates to all areas which are not controlled by friendly forces (see Rule 78 (a)).
- In such areas, medical aircraft may not be used to search for wounded, sick and shipwrecked, except with the prior consent of the enemy.
- If medical aircraft are nevertheless used to search for wounded or sick within areas of combat operations without prior agreement with the enemy, they operate at their own risk. In order to avoid this — and taking into account the obligation to search for and collect the wounded, sick or shipwrecked (see Rule 16 (a)) — Belligerent Parties ought to do all they can to reach such agreements.
- Of course, an agreement to operate medical aircraft in a search-and-rescue operation will be more readily achieved following a specific engagement when search-and-rescue is considered necessary. A speculative search-and-rescue operation, conducted when there are no known casualties, is more likely to be construed as a reconnaissance exercise and an agreement is thus less likely to be achieved.
- Rule 86 (b) applies also in non-international armed conflict.
- Art. 28 (4) of AP/I: “While carrying out the flights referred to in Articles 26 and 27, medical aircraft shall not, except by prior agreement with the adverse Party, be used to search for the wounded, sick and shipwrecked.”
Without prejudice to the status of medical personnel under the relevant provisions of the law of international armed conflict, members of the crew of medical aircraft must not be captured by the enemy and must be allowed to carry out their mission.
[Commentary]
- Rule 87 is based on the fourth paragraph of Art. 39 of GC/II[492] and on the fifth paragraph of Art. 22 of GC/IV.[493] It is a logical consequence of the obligation to respect and to protect medical personnel and to allow them to carry out their mission (see Rule 70).
- According to Rule 80 (a), medical aircraft flying over areas physically controlled by the enemy or over the contact zone may be ordered to land or to alight on water to permit inspection. Medical aircraft must obey any such order. However, following inspection, the aircraft may continue its flight with its occupants, if its purely medical nature is confirmed. According to Rule 87, it is prohibited in such circumstances to capture medical personnel which includes crew members, even though the latter do not carry out medical activities.
- In the case of medical aircraft, the reason why members of the aircrews are covered by the definition of “medical personnel” is even more glaring than in the instance of personnel involved in other medical transports, and this in view of the fact that the medical aircraft’s activities are entirely dependent on the operation of professional aviators to move it around. For the definition of medical personnel, see Commentary on Rule 71.
- Under certain circumstances described in Rule 80 (c), a medical aircraft may be seized. In these circumstances, its occupants must be treated in conformity with the relevant rules of the law of international armed conflict. As a consequence, medical personnel cannot be captured but may be retained insofar as the state of health and the number of POWs require.[494] See also paragraph 3 of the Commentary on Rule 80 (c).
- The special status of medical personnel insofar as capture is concerned is not applicable in non-international armed conflicts.
- Fourth paragraph of Art. 39 of GC/II: “Medical aircraft shall obey every summons to alight on land or water. In the event of having thus to alight, the aircraft with its occupants may continue its flight after examination, if any.”
- Fifth paragraph of Art. 22 of GC/IV: “Such aircraft shall obey every summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after examination, if any.”
- Art. 33 of GC/III, see fn. 461.
