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Commentary - Art. 37. Chapter VI : Medical transports
    [p.294] ARTICLE 37 -- FLIGHT OVER NEUTRAL COUNTRIES


    This Article is new and represents an advance in humanitarian legislation.
    For several years the International Committee of the Red Cross, faced with certain specific cases, had felt that it was necessary to make such provision. (1) Two requirements had to be reconciled -- humane considerations on the one hand, and on the other the rights of neutral States. The problem of meeting these two requirements was already a dominant factor in the discussions which took place on the wording of Article 14 of the Fifth and Article 15 of the Tenth Hague Conventions, during the Peace Conference of 1907.

    [p.295] PARAGRAPHS 1 AND 2 -- CONDITIONS FOR FLIGHT AND LANDING

    For the reasons already given, it did not seem possible to impose on a neutral State the duty of allowing the unconditional flight of aircraft over its territory. On the other hand, it did not seem feasible to leave neutral States at liberty to accord or refuse at will the access of medical aircraft to their territory. It was accordingly decided to adopt the general rule that medical aircraft of belligerents could fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call, and at the same time to give neutral Powers the right to place conditions or restrictions on the passage or landing of medical aircraft on their territory, with the proviso that they were to apply such conditions or restrictions equally to all belligerents.
    The Convention itself imposes three express conditions or restrictions. They are based on the preceding Article dealing with the rights of the belligerents. Medical aircraft must give neutral Powers previous notice of their passage over their territory; they must obey any summons to alight on land or water; and they are to be immune from attack only when flying on routes, at heights and at times specifically agreed upon between the belligerent Power and neutral Power concerned. (2)

    PARAGRAPH 3 -- LANDING OF WOUNDED

    When a medical plane lands in a neutral country, either of its own accord or in response to a summons, it may leave again with its occupants, after being examined by the neutral Power if this is thought necessary. It may be retained only if it is discovered that acts incompatible with the humane role of such aircraft have been committed. Although these considerations have not been mentioned explicitly in the Convention, they follow clearly from the whole text of the Article and from the general principles of international law.
    The officer in charge of the aircraft may, however, be anxious -- for example, because of their state of health -- to land the wounded or sick [p.296] he is transporting in neutral territory, not merely for the short time he stops there, but to leave them there. This he may do, if the local authority in the neutral country agrees. In such cases, and unless there is an agreement to the contrary between the neutral Power and the Parties to the conflict, the wounded and sick must be detained by the neutral Power in such a manner that they cannot again take part in operations of war. The cost of their accommodation and internment is to be borne by the Power on which they depend.
    The obligation imposed on the neutral Power to intern wounded and sick landed by a medical plane belonging to a belligerent, is qualified by the words "where so required by international law". These words were inserted to bring the Geneva Convention into line with the Fifth Hague Convention of 1907, in which general provision is already made for the case in point. (3) Furthermore, under Article 4 of the First Geneva Convention of 1949 , neutral Powers are required to apply by analogy the provisions of the said Convention to the wounded and sick, and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict, received or interned in their territory, as well as to dead persons found. (4) Moreover, under Article 4 B (2) of the Third Geneva Convention of 1949 , members of the belligerent armed forces who are interned in a neutral country are to receive treatment at least as favourable as that granted by the Convention to prisoners of war.


    * (1) [(1) p.294] The International Committee of the Red Cross
    would like to express its gratitude to Dr. Alex Meyer,
    expert in air legislation, for his valuable help in the
    wording of the draft Article which the Committee submitted
    to the XVIIth International Red Cross Conference, and
    which with slight changes has become Article 37 of the
    Geneva Convention of 1949;

    (2) [(1) p.295] This formula is based on the one which appears
    in the preceding Article. Here the word "attack" is surely
    inappropriate; such attacks could only be made by the
    armed forces of the neutral country. Belligerents have
    obviously no right to pursue or attack over neutral
    territory;

    (3) [(1) p.296] See Chapter II of the Fifth Hague Convention
    of 1907, entitled "Belligerents Interned and Wounded
    Tended in Neutral Territory";

    (4) [(2) p.296] See above, page 61;