Rule 80
(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.
