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Commentary - Art. 39. Chapter V : Medical transports
    ARTICLE 39. -- MEDICAL AIRCRAFT


    This Article and the following one are merely a repetition of the corresponding provisions of the First Convention of 1949 (Articles 36 and 37 ), with the addition of references to the shipwrecked and to alighting on water.
    The Commentary on the First Convention contains general remarks concerning medical aircraft, and reference should be made to that volume (1).

    [p.216] PARAGRAPH 1. -- DEFINITION AND PROTECTION

    Medical aircraft have the same rôle under the 1949 Convention as in the past: flying alone or in convoy, they may be used both for the evacuation of wounded, sick or shipwrecked members of the armed forces and persons on a like footing (as referred to in Article 13 ) (2) and for transporting medical personnel and property. Like any other means of transport, they may be the property of the armed forces, or of voluntary aid societies, or may have been requisitioned (3). As in 1929, it was not considered possible, for reasons of military security, to accord protection to aircraft searching for wounded (4).
    The nature of the protection accorded remains the same: the aircraft, like medical transport on land, are placed on the same footing as mobile medical units.
    Nevertheless -- and this is the main difference as compared with 1929 -- they are to be respected only "while flying at heights, at times and on routes specifically agreed upon between the Parties to the conflict concerned". The experts who recommended this solution pointed out that, under conditions of modern warfare, systems of identification based only on the painting of planes were useless. Aircraft were sometimes fired upon from the ground, from a ship or from other planes before their colour or markings could be distinguished. Only previous agreement as to routes, heights and times of flight could, in their opinion, afford medical aircraft a real degree of security and provide belligerents with adequate safeguards against abuse.
    The solution adopted makes any future use of protected medical aircraft dependent on the conclusion of an agreement between the belligerents. As it will be a matter of fixing routes and times of flights, such agreements will no doubt usually be made for each specific case and by a simple exchange of communications between the military commands. But there might also be an agreement of longer duration.
    [p.217] If there is no agreement, belligerents will be able to use medical aircraft only at their own risk. It is, however, to be hoped that in such cases the enemy will not resort to extreme measures until he has exhausted all other means of control at his disposal.
    Today as in 1929, in order to be protected an aeroplane need not be specially equipped or permanently detailed for medical work. It may therefore be used temporarily on a relief mission. This liberal conception is entirely justified, as medical aircraft are called upon to bring help in emergencies -- often under improvised arrangements. At times, if land or sea routes are blocked by military operations, aircraft may offer the only available means of transport. An aircraft used temporarily on a relief mission should, of course, bear the distinctive sign only while on the mission, and will be respected only for its duration.
    On the other hand, it is clear from the text of the Convention that, to be protected, a medical aircraft must, during its relief mission, be used exclusively for that purpose and consequently be completely unarmed. That is obvious.
    Lastly, we may note that the Article speaks of "medical aircraft" and not of aeroplanes. An airship, if such a craft should still be used, could therefore receive protection under the Convention. This is also true of sea-planes, helicopters and any new type of flying machine.

    PARAGRAPH 2. -- MARKING AND RECOGNITION

    In studying the preceding paragraph we have already touched on the matter of marking. Strictly speaking, this should have come under Chapter VI, which deals with the distinctive emblem. It was, however, more convenient to include all the rules concerning medical aircraft in a single Article.
    As in the 1929 text, the first sentence of paragraph 2 lays down that medical aircraft are to be clearly marked with the distinctive emblem of the Convention, together with their national colours, on their lower, upper and lateral surfaces. Wings have purposely not been mentioned, as an airship or helicopter does not have any.
    The 1929 Convention laid down that medical aircraft should be painted entirely white, like hospital ships. For the reasons [p.218] indicated in our comments on the preceding paragraph, this stipulation, which was declared by some to be out of date and unnecessary, was not retained. Certain experts regret this, for they consider that the colour white, which offers good visibility, is clearly distinguishable from that of military aircraft and should be kept for everything connected with the Medical Service. It is, of course, still permissible for those who prefer the old method to use it, and this even seems desirable. At the same time it is worth noting that the fact that the use of white paint is no longer compulsory will save time in converting aircraft, thus facilitating their use in cases of emergency.
    It must be remembered that the distinctive emblem of the Convention is a red cross ' on a white ground '. It is not, therefore, sufficient to paint the red cross on the aircraft itself if the background is not white.
    The second sentence of paragraph 2 lays down that medical aircraft are to be provided with any other markings or means of identification that may be agreed upon between the belligerents concerned. The provision is a wise one as it leaves the way open for any technical improvements in this field.
    Certain facts lead one to suppose that, with the resources available today, great improvements could already be made in the methods by which medical aircraft are identified. The main means of establishing the authenticity of the relief mission of an aircraft would appear to be permanent radio contact with the ground or with ships or other aircraft. Every aircraft now has its own code signal (5). Surely a special international signal for medical missions could be agreed upon? Similarly an abbreviated international code, like that already used at sea and in the air, would make it possible to communicate with the aircraft during its mission and question it as to the nature of the latter and the way in which it was to be carried out. The same means could be used to give an aircraft instructions regarding its flight and, if necessary, order it to land.
    The Diplomatic Conference of 1949, in Resolution 6 of its Final Act, recommended that a committee of experts should examine improvements in the means of communication between hospital [p.219] ships and other ships and aircraft, as well as the possibility of drawing up an international code for the purpose. It would appear most desirable that the study should be extended to the means of communication of medical aircraft. This has, incidentally, been done in the draft regulations which were produced by the Italian Government on March 1, 1950, in pursuance of the said Resolution and which have been submitted to the Powers signatory to the 1949 Conventions.

    PARAGRAPH 3. -- PROHIBITION OF FLIGHT
    OVER ENEMY TERRITORY

    The question of flight over enemy territory was the one stumbling-block in 1929. On this point it was found necessary to bow to the demands of military security, as otherwise the Conference might have been forced to abandon all ideas of securing protection for medical aircraft; the general staffs considered that the risk of unwarranted observation from such aircraft would have been too great.
    Prohibition of flight over enemy territory would not, however, appear to be as prejudicial to the interests of humanity as has been believed. For what does a medical aircraft actually do? It takes medical personnel and equipment to the wounded and brings the latter back to hospitals behind the lines. For these purposes it flies over the territory of the country it is serving or territory occupied by the armed forces of that country. Besides, the new text adopted was considerably less rigid than the old one. In 1929 it was not only flights over enemy territory that were prohibited, but also flights over the firing line and over the zone in front of the main clearing or dressing stations. In the 1949 Convention, the reference is only to enemy or enemy-occupied territory (6).
    [p.220] Finally, it must not be forgotten that the present paragraph begins with the words "unless agreed otherwise". On certain occasions when circumstances so require, e.g. when there are wounded in a besieged zone or area, special permission to fly over enemy-controlled territory may be requested. Such a solution is in full accordance with Article 18, paragraph 2 , of the Convention (7).
    What is to happen if, as the result of an error for example, a medical aircraft fails to comply with the rule prohibiting flight over enemy-controlled territory? It will obviously lose its right to special protection and will be exposed to all the accompanying risks. Nevertheless, every belligerent conscious of his duty would warn the offending plane by radio or order it to alight (paragraph 4) before resorting to extreme measures. It is clear that once an aircraft is on the ground or the water, the wounded and the medical personnel will be entitled to the full to the protection which must be accorded to them in all circumstances.

    PARAGRAPH 4. -- SUMMONS TO ALIGHT

    The summons to alight on land or water provides the adverse Party with a safeguard; it is his one real means of defence against abuse. This very important provision dates from 1929; it states explicitly that medical aircraft must obey every summons to alight. It applies in the first place to aircraft flying over enemy or enemy-occupied territory, whether or not authorized to do so, and also applies to aircraft which are over their own territory, but close to enemy lines.
    If the aircraft refuses to obey, it does so at its own risk, and it is then lawful to open fire on it. If the aircraft is already out of reach, the summons obviously becomes a mere formality. It should not be forgotten, however, that if the plane refuses to obey the summons and is pursued, it loses the protection of the Convention, having failed to comply with its own obligations.
    The Convention dues not state how the summons is to be given; there was no need to enter into the details of such a technical question.
    [p.221] What is to happen to a plane after it has obeyed the summons to alight? The enemy can examine it and will, in normal cases, be able to convince himself that it is being used exclusively for medical purposes. The necessary steps will then be taken to ensure that the wounded do not suffer from the enforced delay.
    The 1929 Convention, treating this case and an involuntary landing alike, determined that the wounded and sick in the plane, the medical personnel and material, including the aircraft itself, should continue to have the protection of the Convention. That meant that the wounded and sick of enemy nationality would become prisoners of war as they do when a belligerent intercepts a medical convoy on the ground. The medical personnel and material, including the aircraft, were to be treated in accordance with the general rules of the Convention, or, in other words, were to be returned according to the usual procedure. The crew was to be sent back, on condition that its members took no part in operations until the end of hostilities, medical service excepted.
    On this point, the 1949 Convention has adopted a more liberal formula: the aircraft, with its occupants, may resume its flight. This appears just. The object of medical aviation is to permit the rapid evacuation of certain wounded and sick. They should not have to suffer from the fact that the enemy exercises his right of examination -- all the more so (always presuming that the crew of the aircraft are guilty of no irregularities) because the summons has, so to speak, been wrongly given. Moreover, the Parties to the conflict have entered into a sort of contract regarding the flight, and retention of the aircraft would constitute a breach of that contract. Finally, it should not be forgotten that the plane has obeyed the summons to alight; that fact must be placed to the credit of its occupants.
    What would happen -- and it is to be hoped that such cases will be the rarest of exceptions -- if examination reveals that an act "harmful to the enemy", in the sense of Article 34 (or Article 21 of the First Convention ), has been committed, i.e. if the plane is carrying munitions or has been used for military reconnaissance? The aircraft loses the protection of the Convention; the enemy may confiscate it, take the wounded prisoner, and treat the medical personnel and equipment according to the general rules of the Convention.

    [p.222] PARAGRAPH 5. -- FORCED LANDING

    A medical aircraft may be forced to alight when, without receiving a summons, it is obliged by weather conditions, engine trouble or any other cause to come down in territory or territorial waters belonging to or controlled by the enemy.
    Certain delegations proposed that the solution in this case should be the same as that adopted for landings made in answer to a summons, but the Diplomatic Conference did not consider that feasible. It was held that considerations of military security must have priority. It was feared that, for purposes of espionage or sabotage, aircraft might pretend to have been forced to alight in remote areas where immediate examination was not possible. The adverse Party may therefore take the wounded and sick and the crew prisoner. The medical personnel are to be treated in accordance with the general rules of the First Geneva Convention (Article 24 ff. ). Even though Article 39 does not actually say so, the equipment will be governed by the provisions of Articles 33 and 34 of the First Convention. The aircraft itself will become war booty, as would a medical vehicle on the ground in similar circumstances. If, however, it belongs to a relief society protected by the Convention, it will be regarded as private property.


    * (1) [(2) p.215] See ' Commentary I, ' p. 285;

    (2) [(1) p.216] The transport by air of sick and wounded
    civilians is covered by Article 22 of the Fourth Geneva
    Convention;

    (3) [(2) p.216] A medical aircraft is never a military
    aircraft, just as a hospital ship is never a warship. See
    above, p. 113;

    (4) [(3) p.216] See MOSSOP: op. cit., p. 403;

    (5) [(1) p.218] Technical progress may, perhaps, make it
    possible to produce a code signal which could be picked up
    by radar. Flares might also be used;

    (6) [(1) p.219] In this Article and the Article following, the
    word "territory" should be understood in the sense in
    which it is used in international law. It may be mentioned
    in this connection that, according to Article 2 of the
    Convention on International civil Aviation concluded at
    Chicago on December 7, 1944, the territory of a State is
    deemed to be the land areas and territorial waters
    adjacent thereto under the sovereignty, suzerainty,
    protection, or mandate of such State. It did not appear
    necessary to enter into these details in the Geneva
    Convention.
    The States have not yet reached agreement as to the
    limit of the territorial sea. Some States have claimed a
    limit of three miles and others of twelve and even two
    hundred miles;

    (7) [(1) p.220] See above, p. 134 ff.;