Rule 86
(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.”
