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Commentary - Optional Use
    [p.1199] Annex I, Article 5 -- Optional use


    [p.1200] General remarks

    4132 The optional use of the distinctive signals described in Articles 6 ' (Light signal), ' 7 ' (Radio signal) ' and 8 ' (Electronic identification) ' of Annex I is established in paragraph 5 of Article 18 ' (Identification) ' of the Protocol, according to which the Parties to the conflict may authorize the use of such signals, while remaining equally free not to grant such authorization. (1) furthermore, neither paragraph 5 of Article 18 ' (Identification) ' of the Protocol nor the present Article 5 calls for reciprocity in the use of distinctive signals. However, paragraphs 1 and 2 of Article 18 ' (Identification) ' referred to above calls upon the Parties to the conflict to endeavour to ensure that medical units and transports are identifiable by means of the distinctive emblem and distinctive signals.

    4133 Several hypothetical situations are to be envisaged for the use of the distinctive signals, depending on military requirements, the equipment available to the adversary and other factors:

    1) The use of distinctive signals is authorized by all the Parties to the conflict. Such authorization may be based on the availability to all the Parties of compatible means of identification for the use of radiocommunications, radar and the flashing blue light. Furthermore, the desire to apply the provisions of the Protocol and the Conventions contributes to the protection of medical units and transports and is therefore a decisive factor.
    2) None of the Parties to the conflict authorizes the distinctive signals. Such prohibition may be permanent, temporary, general or confined to a specific region. It will probably be based on military necessity. A permanent or temporary absence or shortage of certain items of radio, radar or light equipment may be one of the reasons for the prohibition; there may be other reasons too.
    3) Distinctive signals are authorized by one of the Parties to the conflict whereas the other Party, while recognizing and accepting that fact, decides not to use them itself. The difference in approach may be a question of tactics or expediency.
    4) Distinctive signals are authorized by one of the Parties but are not accepted by the other Party as it cannot use or intercept them. There may be different reasons for such opposition, for instance, one of the Parties may not have compatible equipment for receiving or sending distinctive signals.

    4134 These four hypotheses concerning the optional use of distinctive signals apply to civilian or military, permanent of temporary medical units and transports entitled to use the distinctive emblem and signals. The principal means of transport concerned are medical aircraft, in particular medical helicopters, as well as hospital ships and land-based rescue craft.

    [p.1201] 4135 Both the Conventions and the Protocol make provision for the notification of flights by medical aircraft, (2) the use of distinctive signals must be communicated to the adversary at the very latest when such notification is made. Nevertheless, it is highly recommendable that the intention to use such signals be communicated as early as possible to the adverse Party, which should acknowledge such communication and confirm its own intentions with regard to their use. Chapter IV ' (Communications) ' of the Regulations concerning identification meets communication requirements regarding implementation of the provisions relating to the notification of flights by medical aircraft.

    4136 The same holds good for the use of distinctive signals by hospital ships and rescue craft. Over and above the related provisions of Articles 6 ' (Light signal) ' and 8 ' (Electronic identification) ' of Annex I, the eighth paragraph of Article 43 of the Second Convention authorizes such ships and craft, subject to agreement between the Parties, to use the most modern methods available to facilitate their identification. Such agreements should be concluded at the time of notification under Articles 22 and 27 of the Second Convention.

    4137 The use of distinctive signals should also be notified to neutral or other States not Parties to the conflict (3) whose territory might be overflown by medical aircraft, in accordance with Article 31 ' (Neutral or other States not Parties to the conflict) ' of the Protocol.

    4138 All the above comments apply also to medical helicopters based on board hospital ships, notifications of their flights being transmitted by the latter.

    4139 The Parties to the conflict may delegate their power to athorize the use of distinctive signals -- flashing blue light, radio, radar-- to commanding officers on land or at sea, so that these signals may be used by the officers concerned and their personnel to identifymedical aircraft, including helicopters, as well as hospital ships and rescue craft. Accordingly, commanding officers should have the means of instructing military personnel affected by distinctive signals and the safety of medical units and transports in the various hypotheses contemplated, so that medical transports enjoy respect and protection in all cases, as required by the Conventions and the Protocol. To this end, Chapter IV ' (Communications) ' of Annex I contains provisions regarding the communications of medical units and transports -- use of international codes, other means of communication, flight plans -- which may be particularly valuable incases where there has not been unanimous consent with regard to the use of distinctive signals.

    Paragraph 1

    4140 The rule in this paragraph which states that, subject to the provisions of Article 6 ' (Light signal), ' paragraph 3, of Annex I, the distinctive signals are for exclusive [p.1202] use by medical units and transports, is also set out in Article 18 ' (Identification), ' paragraph 6, of the Protocol. (4)

    4141 Since the distinctive signals are means of identification which supplement the visual distinctive emblem, like the latter they are set aside for the exclusive use of medical units and transports. Under Article 38 ' (Recognized emblems) ' of the Protocol, it is prohibited to make improper use of the distinctive emblem or of distinctive signals.

    4142 It seems unlikely that improper use would be made of the distinctive signals, for they make it easier to locate and follow the movements of the transports by which they are used. Radiocommunications enable contact to be established with transports transmitting distinctive signals; Article 11 ' (Other means of communication) ' of Annex I makes provision for other means of communication and Article 13 ' (Signals and procedures for the interception of medical aircraft) ' sets out the procedure to be followed for intercepting medical aircraft. By removing all incentive to use the distinctive signals improperly, these measures should be conducive to ensuring that they are used exclusively by medical units and transports.

    4143 The exception constituted by Article 6 ' (Light signal) ' of Annex I relates only to the use of the flashing blue light. This provision takes into account the widespread use of this light signal as a priority road traffic signal which existed before the adoption of the Protocol, in particular as a means of securing right of way for civilian or military ambulances in peacetime. This point will be further discussed in the commentary on Article 6 ' (Light signal) ' of Annex I.

    4144 In making the use of distinctive signals optional, account has been taken of the related material requirements, such as the availability of the technical equipment and skilled operators required for radio and radar systems as well as for the electrical installation of the flashing blue light. The Parties to the conflict may not possess the required material resources or skilled personnel and may therefore be in one of the hypothetical situations described above under the heading "General remarks".

    4145 It was in order to cater for such situations that the "standards, practices and procedures" recommended for the signalling and identification of medical aircraft in the report of the Technical Sub-Commission of the 1972 Conference of Government Experts take the form of recommendations rather than compulsory rules. (5)

    Paragraph 2

    4146 Temporary medical aircraft are defined in sub-paragraphs (g), (j) and (k) of Article 8 ' (Terminology) ' of the Protocol. (6) Generally speaking, the number of permanent medical aircraft in the armed forces is very small, sinc they can be [p.1203] used for no other purpose and would therefore be grounded for much of the time. When the need arises, therefore, armed or unarmed fighter helicopters may be used to evacuate the wounded, who may also be transported in non-medical aircraft from first-aid centres to hospitals in the rear. (7) Thus, certain military aircraft used to transport military equipment or parachutists are also fitted out to receive stretchers and to transport wounded in the seated or supine position.

    4147 Such aircraft are entitled to the protection afforded to medical transports and may therefore display the distinctive emblem and use distinctive signals for the duration of such transport when they transport only wounded and carry no arms other than those allowed under Article 28 ' (Restrictions on operations of medical aircraft) ', paragraph 3, of the Protocol.

    4148 Both supplies -- paint or self-adhesive materials -- and time are required to mark a helicopter or other aircraft with the distinctive emblem. (8) Some of the members of the Technical Sub-Committee considered that it would be simpler and quicker to replace the red covers of the aircraft's anti-collision lights with blue covers, thus fitting temporary medical aircraft with the distinctive light signal. In the view of these experts, the flashing blue light would entitle the aircraft to use the other distinctive signals, namely, the radar identification code and the radio signal. (9) We shall revert to this matter under Articles 6 to 8 of Annex I.

    4149 Paragraph 5 of Article 18 ' (Identification) ' of the Protocol contains the same rule as the paragraph now under consideration, which authorizes temporary medical aircraft to use only the distinctive signals if, either for lack of time or because of the condition of their fuselage or wing areas, they cannot be marked with the distinctive emblem. There seems to be no reason why the aircraft could not be at least rapidly marked with the emblem, using red and white chalk covered, if necessary, with a waterproof transparent spray, while the anti-collision light covers are being changed or the radar identification code displayed. Red and white spray paint would also make for rapid marking but would be difficult to remove once the temporary medical aircraft had completed its humanitarian mission.

    4150 The easiest and quickest distinctive signal for a temporary medical aircraft to use is without doubt the radar identification code, in so far as such a code has been allocated to the aeronautical region affected by the conflict; this will probably have been done if permanent medical aircraft are operating in the region concerned. This issue is discussed in the commentary on Article 8 ' (Electronic identification) '. In addition to the display of a radar identification code, the use of radiocommunications by temporary medical aircraft in accordance with Article 7 ' (Radio signal) ' of Annex I does not in principle require any special equipment, since all aircraft carrying radio equipment can use one or other of the urgency" frequencies contemplated in Section II (Medical Transports) of Article 40 of the ITU Radio Regulations. That section was added to the Regulations as a result of Resolution 19 addressed by the Diplomatic Conference to the ITU.

    [p.1204] 4151 Medical aircraft are most effectively marked by means of a visual signal within the meaning of this paragraph. However, modern air warfare or anti-aircraft defence methods enable a fighter plane to open fire on another aircraft long before such signs can be distinguished.

    4152 Accordingly, the practical aspects of using distinctive signals should be studied in advance and the necessary arrangements made in good time, so that all these signals may be brought into use promptly in the event of recourse to temporary medical aircraft.

    ' Ph. E. '


    NOTES (1) [(1) p.1200] Cf. commentary Art. 18 of the Protocol, supra, p. 221;

    (2) [(2) p.1201] Cf. commentary Arts. 25, 26, 27 and 29 of the Protocol, supra, respectively p. 283, p. 287, p. 293 and p. 307; First Convention, Art. 36, first para.; Second Convention, Art. 39, first para.; introduction to Chapter IV, infra, p. 1257;

    (3) [(3) p.1201] Hereinafter "neutral States"; on the expression "neutral or other States not Parties to the conflict" cf. commentary Art. 2, sub-para. (c), of the Protocol, supra, p. 61;

    (4) [(4) p.1202] Cf. commentary Art. 18 of the Protocol, supra, p. 232;

    (5) [(5) p.1202] ' CE 1972, Report ', Vol. I, pp. 41-42, para. 1.66; pp. 53-54, Annex II; p. 54, para. 5;

    (6) [(6) p.1202] Cf. commentary Art. 8, sub-paras. (g), (j), (k) of the Protocol, supra, pp. 130-133;

    (7) [(7) p.1203] O.R. XI, p. 168, CDDH/II/SR.18, para. 19;

    (8) [(8) p.1203] Ph. Eberlin, "The Identification of Medical Aircraft in Periods of Armed Conflict", ' IRRC ', July-August 1982, p. 202;

    (9) [(9) p.1203] O.R. III, p. 386, CDDH/II/329, para. 2;