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Commentary - Medical aircraft in contact or similar zones
    [p.287] Article 26 -- Medical aircraft in contact or similar zones


    [p.288] 991 Article 26 is the second of three articles laying down the general rules for the use of medical aircraft, depending on the area (zone) where they are.

    992 It will be noted that this article actually imposes only one obligation on the Parties to the conflict, namely, that they must respect medical aircraft as soon as they have been recognized as such in the areas defined in the article. In addition, the great risk taken by medical aircraft operating in such areas without prior agreement with the adverse Party is pointed out, though such action is not prohibited.

    993 The second paragraph of the article defines the expression ' contact zone, ' which is used in the first paragraph. As it is virtually impossible to interpret the first paragraph without understanding this definition, we will begin by examining the second paragraph.

    Paragraph 2

    994 This paragraph defines the expression ' contact zone '.

    995 The draft adopted by the Conference of Government Experts in 1972 referred to the forward part of the battle area, (1) as opposed to the ' rear part, ' and these concepts were described in the following terms:

    "in the forward part are to be found units in direct contact with the enemy. Freedom of movement is limited; the forces are exposed to direct enemy vision and hence to direct firing. In the "rear part" of the battle area are the units belonging to the second echelon and the reserve units of the troops in hostile contact. They are less exposed to enemy vision and firing, and there is, therefore, greater freedom of movement". (2)

    996 During the Diplomatic Conference a mixed Working Group from Committees II and III met with a view to recommend the "terms that should be used to cover the various military situations that are envisaged in some of the articles contained in the Draft Additional Protocols" and the "definitions of the terms recommended". (3)

    997 The expression "contact area" was defined by the Working Group as follows: "In an armed conflict, that area where the most forward elements of the armed forces of the adverse Parties are in contact with each other". (4)

    [p.289] 998 As the Rapporteur of the Drafting Committee of Committee II stated, this Committee considered that "the expression contact zone corresponded grosso modo to the definition proposed by the Joint Working Group". (5)

    999 The fact that it was limited to areas ' on land ' was in order to "exclude naval engagements where there was, strictly speaking, no "contact zone"". (6) It should be added that, in any event, such engagements would be governed by the laws of war at sea, which were not dealt with by the CDDH, and that the very concept of a contact zone basically, if not exclusively, belongs to the field of war on land.

    1000 On the other hand, as the Rapporteur stated unequivocally, land areas also include "rivers, shallow waters and beaches where fighting could take place in the same way as anywhere on other land areas". (7)

    1001 Though the phrase "especially where they are exposed to direct fire from the ground" was added, this was as a "reference to a military scenario" by way of a clarifying example. (8) In this respect the Rapporteur indicated that ' direct fire ' should be understood as "any shooting where the person shooting had his target in sight, as distinguished from indirect fire, where the gunner did not see the target but directed the shooting on the basis of data other than his own vision". (9) Moreover, it should be stressed that the direct fire referred to here is ' from the ground, ' i.e., it does not include direct fire that might come from aircraft. Thus the extent of the contact zone can vary considerably, depending on the range of the weapons used and the configuration of the ground.

    1002 The term ' forward elements ' should not be interpreted merely as a small number of scouts, but as all troops in contact with the enemy. In short, the contact zone is simply the "forward part" of the field of battle.

    1003 Finally, as the Rapporteur of the Drafting Committee stated, it should be noted that this definition does not claim to be applicable in other contexts and was established only for the specific needs of Article 26 . (10) However, the possibility cannot be excluded that it might be used for reference in the future.

    Paragraph 1

    ' First sentence '

    1004 This paragraph first sets out to define the areas where the article will apply.

    1005 First it refers to "parts of the contact zone which are physically controlled by friendly forces". Even this forward part of the battle-area constituting the contact zone can be sub-divided into zones controlled by each of the Parties to the conflict. (11)

    [p.290] 1006 Secondly it refers to "areas the physical control of which is not clearly established". Although there are zones in the "forward part" of the battle-area, where one or other of the Parties has clearly established control, there are others where physical control by one or other of the Parties is not clearly established. Furthermore, the latter zones may be predominant in view of the nature of modern conflicts. These are areas where, as the Conference of Government Experts expressed it in 1972, the military situation is "not clear", (12) where the opposing forces may be entangled as a result of a series of assaults and repulses.

    1007 Thus these are the two types of areas covered by Article 26 , excluding the part of the contact zone dominated by enemy forces. That part of the contact zone is subject to the same rules as any area under the control of the adverse Party. (13)

    1008 In addition, it is stated that Article 26 applies not only ' in ' the areas defined above, but also ' over ' those areas, i.e., in the air space situated above such areas. In fact, the article applies ' primarily ' to the air space, since it deals with aircraft. However, by making this distinction it is clearly shown that the protection of medical aircraft does not apply only when they are flying over such areas, but also when they are on the ground.

    1009 The rest of the first sentence is a straightforward remark, implying a recommendation. Reference is made to the risk run by medical aircraft used in such areas without prior agreement. Thus an implicit recommendation is made to conclude such agreements between the "competent military authorities of the Parties to the conflict". The draft referred to "local military authorities". Even though such agreements are generally concluded at that level, Committee II considered that a specific mention of local authorities was unduly restrictive. As one delegate pointed out, it is important to avoid

    "a situation in which protection for medical aircraft was not fully effective merely because it had been impossible to reach prior agreement between the local military authorities, whereas there might have been means of communication and agreement between the Parties at a higher level". (14)

    1010 There is nothing in the article to indicate that there is any form of ' obligation ' for the Parties to the conflict to conclude such agreements. However, given that medical aircraft can play a role of paramount importance in rescuing the wounded, and that the risk they would run by operating without an agreement would be considerable, it seems clear that the spirit of the text means that Parties to the conflict should not refuse to conclude such agreements without a valid reason. Moreover, the draft presented to the Conference of Government Experts in 1972 stated that the Parties to the conflict shall permit, and an exception was only made in case of imperative military necessity.

    1011 The procedure and the content of the agreement are specified in Article 29 ' (Notifications and agreements concerning medical aircraft). ' (15)

    [p.291]
    ' Second sentence, first part '

    1012 As is made clear in the second part of the sentence, this first part should not be interpreted as a sort of "free for all". The drafters of the Protocol merely refused to allow States engaged in armed conflict to be made responsible for medical aircraft flying without prior agreement in the area defined above. Thus the authorities of such States cannot be held responsible when a medical aircraft flying in such circumstances, and not yet identified, is shot down by mistake.

    ' Second sentence, second part '

    1013 Basically this second part of the sentence repeats the second paragraph of the draft. Some delegates wished to delete it in order to impose a total ban on medical aircraft flying in such areas without prior agreement. (16) With some justification they relied for this view on the Conventions, particularly Article 36 of the First Convention, which makes agreement a condition sine qua non of the use of medical aircraft.

    1014 The fact that the second part of the sentence was retained means that medical aircraft flying in such areas without prior agreement, though taking considerable risks, as stressed in the article, nevertheless do not lose their right to protection. Obviously there is a risk that members of the armed forces of the adverse Party might fire before recognizing that the aircraft are ' medical ' aircraft, but as soon as they have recognized them as such, they are under a strict obligation to respect the aircraft, i.e., not to take aim at them, and by violating this obligation, they would commit a grave breach (even though in such cases it would obviously be very difficult to establish fault).

    1015 The connection between this article and Article 30 ' (Landing and inspection of medical aircraft), ' paragraph 1, needs to be pointed out. This provides that over "areas the physical control of which is not clearly established", but only over such areas, medical aircraft may be ordered to land and must obey any such order. If aircraft flying over such areas are unequivocally ordered to land and clearly refuse to comply, they lose the right to respect which is laid down in the second part of the second sentence. It was rightly pointed out in Committee II that it might be difficult to order a landing and make an inspection of aircraft in such areas. (17) In this respect it is clearly impossible to require a medical aircraft to land somewhere where it is not possible to land or, in some situations, to alight on water satisfactorily. However, even if there is a possibility, it was pointed out that it might happen that a medical aircraft decided not to obey the order (18) and attempted to return to the rear. Nevertheless, it will be recalled that a pilot taking such a decision would be in contravention of the provision laid down in Article [p.292] 30 ' (Landing and inspection of medical aircraft), ' paragraph 1, second sentence, and that he would run the risk of his aircraft being shot down.

    1016 A summary of the situation may be stated as follows: in the part of the contact zone physically controlled by friendly forces, medical aircraft operate at their own risk, if there is no agreement, but they should be respected by the adverse Party as soon as the latter has realized that it is a medical aircraft.

    1017 The situation is the same in areas the physical control of which is not clearly established, though the adverse Party has the additional option of ordering the aircraft to land or, in some cases, to alight on water -- provided that it is actually possible to carry out such an order. If the aircraft clearly refuses to comply with this order, it loses its right to be respected.

    ' Y.S. '


    NOTES

    (1) [(1) p.288] ' CE 1972, Report ', Vol. I, p. 46, para. 1.83 and draft Article 25, para. 1, of the Committee;

    (2) [(2) p.288] F. de Mulinen, "Signalling and Identification of Medical Personnel and Material", IRRC, September 1972, p. 479; cf. also O.R. XI, p. 505, CDDH/II/SR.45, para. 19;

    (3) [(3) p.288] O.R. XIII, p. 199, CDDH/II/266-CDDH/III/255, para. 1; cf. also F. de Mulinen, "A propos de la Conférence de Lucerne et Lugano sur l'emploi de certaines armes conventionnelles". 9 ' Annales d'Etudes internationales, ' Geneva, 1977, pp. 123-125;

    (4) [(4) p.288] On this subject, cf. O.R. XIII, p. 203, CDDH/II/266-CDDH/III/255, Annex 1;

    (5) [(5) p.289] O.R. XI, p. 591, CDDH/II/SR.52, para. 12;

    (6) [(6) p.289] Ibid;

    (7) [(7) p.289] Ibid;

    (8) [(8) p.289] Ibid;

    (9) [(9) p.289] Ibid;

    (10) [(10) p.289] Cf. ibid., para. 15;

    (11) [(11) p.289] On the meaning of the expressions "physically controlled" and "friendly forces", cf. commentary Art. 25, supra, p. 284;

    (12) [(12) p.290] CE 1972, Report, Vol. I, p.46, para. 1.82;

    (13) [(13) p.290] On this subject, cf. commentary Art. 27, infra, p. 293;

    (14) [(14) p.290] O.R. XI, pp. 521-522, CDDH/II/SR.46, para. 43;

    (15) [(15) p.290] Cf. commentary Art. 29, infra, p. 307;

    (16) [(16) p.291] Cf. particularly O.R. XI, p. 520, CDDH/II/SR.46, para. 38. On the relationship between the articles of the Conventions and those of the Protocol relating to medical aircraft, cf. in addition, supra, commentary Art. 24, p. 279;

    (17) [(17) p.291] O.R. XI, p. 541, CDDH/II/SR.48, para. 17;

    (18) [(18) p.291] Ibid., p. 542, para. 23;