Rule 76
(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.
