(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.
(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).
(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.
- This Rule was engendered by discussions by the Group of Experts concerning the scope and application of Art. 26 (1) and Art. 27 (1) of AP/I. 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).
- The contact zone, as defined in Art. 26 (2) of AP/I, 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.
- 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. The reference to the ICAO flight plan is derived from Art. 13 of Annex I to AP/I (as amended in 1993).
- 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. 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.