ICRC databases on international humanitarian law
  • Print page
Commentary - Occupants of aircraft
[p.493] Article 42 -- Occupants of aircraft

[p.494] General remarks

1633 Military aviation really began to develop during the First World War. The novelty of this weapon, the spirit of adventure of its devotees, the prestige of its missions, and the sharing of risks created a sort of fraternity between the airmen of the two camps at that time, which was characterized by a spirit of cameraderie and by practices which are suggestive of chivalry. The adversary who had been brought down in flames was entitled, not to bullets, but to a salute as he went down, to wishes for his recovery if he were wounded, and flowers if he were dead.

1634 Such manifestations of a bygone age only stood up to the turmoil of the Second World War on rare occasions. On the contrary, all too often the adverse airforces confronted each other in merciless combat, even opening fire on an enemy in distress, parachuting down or shipwrecked, or action was taken to prevent the enemy's parachute from opening. Sometimes the attacker even rammed his adversary, which clearly left no possibility for anyone to survive. (1) Despite such excesses, the spirit of earlier times was not crushed in airmen at all times during the Second World War. There were cases where, notwithstanding the tragic evolution of the role of aviation after 1918, certain rules were observed with respect to the occupants of aircraft parachuting down to save their lives. There were even cases in which the victor actually used his own lifeboat craft to help the enemy who had been brought down over the sea.

1635 Part IV of the Protocol is essentially aimed at calling a halt to the devastation and indiscriminate effects wrought by air forces in modern warfare. The task assigned to air forces should be restricted to the destruction of military objectives, as is the case for land forces. Article 42 is meant to protect airmen who are ' hors de combat. ' In other words, it prohibits anyone from "hitting below the belt". However, Article 42 was the only provision in this Section not to have been adopted by consensus.

1636 The problem arose during the second session of the Conference of Government Experts. While a number of proposals were tabled to supplement the text presented by the ICRC (2) with the purpose of giving airmen in distress the possibility of surrendering when they had landed in enemy territory, (3) one delegation suggested that the article should be entirely deleted. (4) Under these conditions the ICRC endeavoured to present a more flexible text -- though it was hardly less vulnerable (5) -- in the final draft submitted to the Conference. In fact, [p.495] this was also largely based on other proposals presented by experts. In addition, the ICRC considered that Article 42 should be joined to Article 41 ' (Safeguard of an enemy hors de combat). ' This point of view was shared by most of the delegations, (6) but it was precisely with regard to this matter that difficulties seemed bound to arise. Many representatives considered that a person parachuting from an aircraft in distress and landing on territory controlled by the Party to which he belongs, or by an ally of this Party, could not be considered to be ' hors de combat. ' While some advocated a clear and strict rule to guarantee immunity to airmen in distress in all circumstances, and to guarantee them the possibility of surrendering on the ground in case they land on enemy territory, others refused immunity to pilot who in fact is escaping. The matter was settled in this sense, i.e., with this important exception, at the third session, with 28 votes for, 21 against and 21 abstentions, (7) but the problem was taken up again at the fourth session with the opposite result, with 51 votes for, 12 against and 14 abstentions. (8) The opponents did not admit defeat, and resumed the argument at the final plenary meetings. After a spirited intervention by the ICRC, (9) the amendment was rejected, having gained only 23 votes to 47, while 26 delegations abstained. (10) The article as a whole was finally adopted with 71 votes to 12, and 11 abstentions. (11)

1637 This article is entirely new. The Hague Regulations of 1907, produced at a time when air warfare did not exist, was obviously not concerned with this problem. However, military manuals already contained prohibitions on firing on airmen in distress, in this way confirming its customary law character. (12) An analagous provision can be found in Article 20 of the Hague Rules on air warfare. (13) There is absolutely no doubt that the majority considered that airmen in distress are comparable to the shipwrecked persons protected by the Second Convention.

1638 Paragraph 1 protects any person parachuting from an aircraft in distress during his descent. Paragraph 2 ensures the safety of this person on the ground, and paragraph 3 excludes airborne troops from the scope of this article.

[p.496] Paragraph 1 -- Safeguard during descent

1639 The text appears to be unequivocal: any person parachuting from an aircraft in distress is protected during his descent.

1640 This rule covers both the civilian and the military occupants of an aircraft in distress, whether the aircraft itself is civilian or military. (14) However, as some opposition to such an absolute rule has been apparent throughout the deliberations, as we saw above, it is appropriate to examine the arguments on both sides in more detail.

1641 The arguments of those who were opposed to an absolute rule are of two kinds. In the first place, they argued that an airman suspended from his parachute is perfectly capable of committing a hostile act during his descent, for example, by opening fire on persons on the ground, and consequently the text should be amended accordingly. (15) Other delegates contested this view on the basis of their personal experience of parachuting, (16) and the amendment did not gain a sufficient number of votes to be adopted at the plenary meeting. (17) The second argument of the same delegates was that although an airman parachuting from an aircraft may be ' hors de combat ' during his descent, he is only ' hors de combat ' temporarily if he lands in friendly territory. Moreover, it is possible that he could try to escape during the descent itself by guiding the direction of the descent, though this also depends on the wind. Additionally, a person who lands in allied territory escapes capture, and therefore the conditions of Article 41 ' (Safeguard of an enemy hors de combat) ' are no longer fulfilled. To give airmen, who have control of tremendous firing power, this sort of advantage compared to other combatants, is out of proportion to the devastation which these airmen can cause nowadays. Such courtesy is not reconcilable with that owed the civilian population, and practice during the Second World War does not confirm any such rule. (18) Moreover, it is not uncommon for airmen in distress, parachuting not into their own territory, but into enemy territory, to transmit distress signals during their descent intended to alert their own forces and lead to a rescue operation, with the aim of escape. It was stated that this clearly proves that these persons are not ' hors de combat ' during their descent, and certainly have no intention of surrendering. Consequently the conditions of paragraph 1 of Article 41 ' (Safeguard of an enemy hors de combat) ' are not fulfilled and the safeguard should not be granted. (19)

1642 The main speaker to reply to these objections was the representative of the ICRC. He considered that any decision to restrict the safeguard provided for in [p.497] paragraph 1 of Article 42 would introduce in the Protocol an element contrary to its purpose and spirit. The Geneva Conventions only contain provisions protecting victims of war, they do not give States rights against these victims. Since 1864, when States adopted the first Geneva Convention for the amelioration of the condition of wounded soldiers in armed forces in the field, they accepted that they would have to sacrifice some of their power for the benefit of human beings, for a compelling humanitarian need. The law in this respect should not be questioned again. On the contrary, it has been extended since then to other categories of victims of hostilities, including airmen in distress who are actually "shipwrecked in the air", as it were. (20) Others argued that the elimination of a few pilots cannot be a decisive way of winning a war. (21) finally, the decision favoured by the minority could have a disastrous effect on pilots, who would either tend to avoid the risks necessarily involved in restricting their attack to the assigned military target, or would not bail out but undertake a desperate defence with the means still at their disposal, which would not be to the advantage of the adverse Party. (22) A number of delegations explicitly approved the ICRC position, and the proposal of the minority was rejected, as shown above. (23) 1643 The rule adopted, admittedly only by majority vote, is therefore clear and without reservations. However, its application can involve difficulties, for it is not always easy, in particular for combatants on the ground or at night, to distinguish between a parachutist in distress and a parachutist who is attacking, or even a spy, (24) or to realize that the crew concerned is descending from an aircraft in distress when this is flying at an altitude of 10,000 metres or more. However, these considerations should not constitute an obstacle to the application in good faith of the rule of this paragraph.

Paragraph 2 -- Surrender on reaching the ground

1644 The airman who parachutes from an aircraft in distress is therefore temporarily ' hors de combat, ' just as if he had lost consciousness, until the moment that he lands on the ground, and as long as he is incapacitated. (25) Once on the ground, various situations may arise in the case where he lands in territory controlled by the adverse Party. The main problem, which forms the object of this paragraph, consists of giving the airman an opportunity to surrender before he becomes a legitimate object of attack. However, it is self-evident that the other provisions of the Conventions and the Protocol apply in the case where the person concerned [p.498] is wounded, dead or reported missing. (26) The provisions of Article 41 ' (Safeguard of an enemy hors de combat) ' in particular apply fully to any person landing in territory controlled by an adverse Party, after parachuting from an aircraft in distress, under the conditions set out in that article. However, there is one point where this paragraph goes further than Article 41 ' (Safeguard of an enemy hors de combat), ' viz., with regard to the question of surrender. The intent to surrender is assumed to exist in an airman whose aircraft has been brought down, and any attack should be suspended until the person concerned has had an opportunity of making this intention known.

1645 The most thorny problems in this respect arise with regard to the civilian population. It often happens that airmen in distress do not actually land in an enemy controlled sector of the battlefield, in which case they are captured under similar conditions to those which pertain to other combatants, but altogether outside the zone of military operations. Thus they can be at the mercy of the civilian population, and the history of twentieth century warfare, both in the past and recently, contains a number of examples in which civilians have committed abuses in these circumstances. (27)

1646 Committee III was concerned with this problem when it examined Article 41 , and in the report presented at the end of the third session, the Rapporteur expressed the opinion that:

"Committee II should be asked to consider whether Article 17, which it has already adopted, should be amended by adding a reference to the protection of persons ' hors de combat. ' Certainly it seems that such persons should be respected by the civilian population." (28)

Committee II, which earlier had considered an amendment intended to refer explicitly in Article 17 to combatants ' hors de combat ' (29), examined the problem at the fourth session. (30) After a brief debate, it came to the conclusion that:

"the wounded, sick and shipwrecked, whether friend or foe, were protected by Article 17, so that it was not necessary to repeat in Article 17 the protection implicitly provided by paragraph 1 of Article 38 bis [41 ]". (31)

[p.499] 1647 It is therefore perfectly clear that the obligation to respect persons who are ' hors de combat ' applies to civilians as much as it does to combatants, and that this protection is also due to airmen who land after parachuting from an aircraft in distress. It is up to the Contracting Parties to take all measures required for this purpose, particularly by instructing the civilian population in an appropriate manner and by giving realistic directives on the conduct that should be observed in these circumstances, (32) for example, by giving local authorities the competence to accept a surrender. The same should apply with respect to the police or any other armed force charged with imposing respect for domestic order. As they are combatants, these airmen are actually entitled to be treated as prisoners of war from the moment of their capture or surrender. (33) The same applies if their status is doubtful (Article 45 -- ' Protection of persons who have taken part in hostilities, ' paragraph 1), or if the persons concerned are civilian air crews (Third Convention, Article 4 letter A (5). Civilians are entitled, at the very least, to the minimum guarantees laid down in Article 75 ' (Fundamental guarantees). ' Spies who are caught in the act cannot be punished without a previous trial (Hague Regulations, Article 30 ). (34)

1648 A priori, fire must therefore not be opened on the ground against persons who have parachuted from an aircraft in distress, whether they land in or behind the enemy lines. These airmen are presumed to have the intention of surrendering, and all possible measures should be taken to enable this surrender to take place under appropriate conditions. (35)

1649 There are two exceptions to this rule. The first concerns airborne troops (paragraph 3). The second is expressed in paragraph 2 by the phrase "unless it is apparent that he is engaging in a hostile act". The Rapporteur made the following comment on this phrase:

"The Committee decided not to try to define what constituted a hostile act, but there was considerable support for the view that an airman who was aware of the presence of enemy armed forces and tried to escape was engaging in a hostile act. On the other hand, merely moving in the direction of his own lines would not, by itself, mean that he should not be given an [p.500] opportunity to surrender, for he might not know in which direction he was going or that he was visible to enemy armed forces." (36)

Obviously the problem does not arise with regard to a pilot who has come down in the sea, but it has frequently happened that the Party to the conflict to which this pilot belongs has attempted to rescue him, particularly by means of hydroplanes or ships marked with the red cross emblem. During the Second World War, some belligerents refused to recognize the immunity of these medical aircraft and rescue craft, (37) but it is self-evident that fire could not be opened on the shipwrecked pilots under any circumstances. Article 28 of the Protocol ' (Restrictions on operations of medical aircraft), ' paragraph 4, prohibits the use of medical aircraft, including helicopters, to search for the wounded, sick and shipwrecked, except by prior agreement with the adverse Party. Thus, if a pilot is shot down, the Party to the conflict to which he belongs must, unless there is an agreement to the contrary, attempt to retrieve him manu militari, if it attempts to retrieve him, and this act undeniably constitutes a hostile act in territory under the control of the enemy, though it is not a hostile act on the part of the pilot himself. The latter only loses his right to safeguard if he actively and knowingly participates in the rescue operation mounted on his behalf. (38)

1650 If a plane is forced to land in enemy territory, the crew's instructions oblige them to destroy the aircraft, but it is also the duty and the right of the adversary to try and prevent this, if necessary by force of arms. (39) This therefore constitutes a hostile act.

1651 It is appropriate to emphasize once more that if an airman in distress refuses to lay down arms or to surrender, tries to escape or engages in any other way in an obviously hostile act when he reaches the ground, only such force as is [p.501] necessary in the circumstances to capture him or render him ' hors de combat ' may be used. (40) Any act of vengeance is prohibited.

Paragraph 3 -- Airborne troops

1652 This paragraph excludes airborne troops from the scope of the protection of this article. This means that it is not prohibited to open fire on airborne troops, either from the ground, or from an aircraft, during the descent by parachute. This is perfectly understandable, for in these circumstances parachuting from an aircraft constitutes an attack, and not a situation of shipwreck. However, in his report, the Rapporteur states that this exception also applies if the troops leave their aircraft because it is in distress. (41) In practice, it is actually difficult to see, during an airborne attack, when anti-aircraft batteries enter into play, how one could distinguish between parachutists who have left their aircraft of their own free will, and those who have been forced to do so by enemy fire, at least when the event takes place in the same location as the attack. Conversely, if the aircraft transporting airborne troops is brought down away from the target of the airborne attack, it will be difficult to distinguish, during their descent, these parachutists from the crew of any other aircraft in distress.

1653 Once on the ground, airborne troops are governed by Article 41 ' (Safeguard of the enemy hors de combat) ' and not by Article 42 . Thus, the safeguard only applies under the conditions and within the limitations provided for in Article 41 ' (Safeguard of the enemy hors de combat) ' and there is no presumption vis-à-vis these troops that they have the intention of surrendering. Moreover, it is not possible to exclude the possibility that the civilian population could rise up ' en masse ' to oppose the action of airborne troops. (42) However, the safeguard is obligatory from the moment they are rendered ' hors de combat. ' It applies to all persons and consequently includes parachutists who are on a "special mission". (43) The term "airborne troops" can have a wide range of interpretations and covers units of infantry dropped from the air, as well as groups of commandos instructed to penetrate behind the enemy lines, liaison officers, spies, technical experts accompanying materiel dropped by parachute, groups of saboteurs or propagandists etc.

1654 All such persons and all other categories which may play a role in modern conflicts, including rescue teams entrusted with missions such as retrieving a pilot who has been brought down or liberating prisoners of war, are entitled to the guarantees of Article 41 ' (Safeguard of the enemy hors de combat) ' from the moment that they are ' hors de combat. '

[p.502] Conclusion

1655-- Any person parachuting from an aircraft in distress is protected during his descent towards the ground, whether he lands in territory controlled by the enemy or by friendly forces.

1656-- In the event that he lands in territory controlled by an adverse Party, the provisions of the Conventions apply in case the person concerned is wounded or missing. He is presumed to have the intention to surrender, and any attack should be suspended until he has had an opportunity of revealing such intent. Appropriate instructions should be given to the civilian population.

1657-- The safeguard of airborne troops is governed by Article 41 ' (Safeguard of the enemy hors de combat) ' and not by Article 42 , under consideration here.

' J. de P. '


(1) [(1) p.494] For further details, see particularly J.M. Spaight, op. cit., pp. 118-119 and 158-168;

(2) [(2) p.494] Based on a proposal of a delegation, but considerably simplified, see ' CE 1971, Report ', p. 105, CE/COM III/C 3 for the ICRC text, ' CE 1972, Report ', Vol. II, p. 6, Art. 36;

(3) [(3) p.494] See, for example, ' CE 1972, Report ', Vol. II, p. 52, CE/COM III/C 10;

(4) [(4) p.494] Ibid., p. 59, CE/COM III/C 49;

(5) [(5) p.494] ' Article 39 -- Aircraft occupants ' "1. The occupants of aircraft in distress shall never be attacked when they are obviously ' hors de combat ', whether or not they have abandoned the aircraft in distress. An aircraft is not considered to be in distress solely on account of the fact that its means of combat are out of commission.
2. The use of misleading signals and messages of distress is forbidden.";

(6) [(6) p.495] O.R. XIV, pp. 287-292, CDDH/III/SR.30;

(7) [(7) p.495] O.R. XV, p. 90, CDDH/III/SR.47, para. 25 and p. 386, CDDH/236/Rev.1, para. 29;

(8) [(8) p.495] Ibid., p. 210, CDDH/III/SR.59, paras. 6-8, and p. 519, CDDH/III/391;

(9) [(9) p.495] O.R. VI, pp. 106-107, CDDH/SR.39, paras. 88-90;

(10) [(10) p.495] Ibid., p. 110, para. 110;

(11) [(11) p.495] Ibid., para. 113;

(12) [(12) p.495] For example, the French ' Règlement de discipline générale dans les armées, ' mentioned above, Art. 34, para. 2: "De plus il [...] est interdit: de tirer sur l'équipage et les passagers d'avions civils ou militaires sautant en parachute d'avions en détresse, sauf lorsqu'ils participent à une opération aéroportée". ("Moreover, it is prohibited to fire at the crew and passengers of civilian or military aircraft when they are parachuting from an aircraft in distress except when they are participating in airborne operations".) (translated by the ICRC);

(13) [(13) p.495] Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Rules of Aerial Warfare, proposed by a commission of jurists which met in The Hague on 11 December 1922 (see M. Deltenre, op. cit., pp. 818-849). These rules were never formally adopted, but their significance as a reflection of ' opinio juris ' is recognized to some extent. Art. 20 provides: "In the event of an aircraft being disabled, the persons trying to escape by means of parachutes must not be attacked during their descent". However, an airman who parachutes from the aircraft to save his life is not considered to have surrendered at discretion (see 1 ' Law Reports, ' "The Dreierwald Case", pp. 85-86, and infra, note 36);

(14) [(14) p.496] As regards the conditions under which fire may be opened on a civilian aircraft, whether it is of neutral or enemy nationality, see supra, ad Art. 41, p. 485 and note 20;

(15) [(15) p.496] O.R. III, p. 172, CDDH/413, and O.R. VI, p. 104, CDDH/SR.39, para. 71;

(16) [(16) p.496] O.R. VI, p. 105, CDDDH/SR.39, para. 77;

(17) [(17) p.496] Ibid., p. 106, para. 85;

(18) [(18) p.496] O.R. VI, pp. 104-105, 108 and 110, CDDH/SR.39, paras. 72, 96 and 108. The proposed amendment had the following content: "unless it is apparent that he will land in territory controlled by the Party to which he belongs or by an ally of that Party" (O.R. III, p. 173. CDDH/414);

(19) [(19) p.496] O.R. XIV, pp. 289-290, CDDH/III/SR.30, paras. 16-17;

(20) [(20) p.497] O.R. VI pp. 106-107, CDDH/SR.39, paras. 88-90;

(21) [(21) p.497] Ibid., p. 109, para. 104;

(22) [(22) p.497] In this sense, see J.M. Spaight, op. cit., p. 163;

(23) [(23) p.497] Supra, p. 494. See O.R. VI, p. 110, CDDH/SR.39, para. 112, and pp. 113 and 117 for the explanations of vote in favour of the minority position, and p. 116 for similar explanations in favour of the majority position;

(24) [(24) p.497] One delegation had proposed at the second session of the Conference of Government Experts that orange parachutes should be used for the purpose of indicating that those who were using them were intending to surrender (' CE 1972, Report ', Vol. II, p. 52, CE/COM III/C 8);

(25) [(25) p.497] O.R. XV p. 519, CDDH/III/391;

(26) [(26) p.498] In this respect, see Arts. 33 and 34;

(27) [(27) p.498] For the Second World War, see J.M. Spaight, op. cit., pp. 143-144, and "Trial of Peter Back", 3 ' Law Reports, ' pp. 60-61. In some cases enemy pilots were lynched by the civilian population, with or without the complicity of the military authorities (see J.M. Spaight, op. cit., pp. 61-62, and "The Essen Lynching Case", 1 ' Law Reports, ' pp. 88-92). In some cases the police force was involved in this (cf. "Trial of Albert Bury and Wilhelm Hafner", 3 Law Reports, pp. 62-64). Also see "CICR, Les représailles contre les prisonniers de guerre", ' RICR, ' November 1947, p. 863, especially pp. 865-866;

(28) [(28) p.498] O.R. XV, p. 384, CDDH/236/Rev. 1, para. 25;

(29) [(29) p.498] O.R. III p. 83, CDDH/II/14;

(30) [(30) p.498] O.R. XII, pp. 466-467, CDDH/II/SR.99, paras. 9-16;

(31) [(31) p.498] Ibid., paras. 13 and 16. When Art. 17 was adopted at the final plenary meetings, one delegation specifically declared that "in accordance with the views expressed in Committees II and III, the protection provided by Article 17 applies also to persons parachuting from an aircraft in distress and to other persons ' hors de combat '" (O.R. VI, p. 79, CDDH/SR.37, Annex (Israel));

(32) [(32) p.499] See ' Commentary I ' ad Art. 18, p. 187. However, civilians are apparently not expected to go so far as to retrieve the dead themselves (O.R. XI, p. 486, CDDH/II/SR.44, para. 8);

(33) [(33) p.499] Since 1949 there are no longer any exceptions to this rule. This was not the case under the 1929 Convention, which in the case of operations at sea or in the air, made allowance for such exceptions (derogations) as the conditions of such capture render inevitable (Art. 1, para. 2);

(34) [(34) p.499] The problem of uniform has sometimes led to a degree of confusion in this respect (see J.M. Spaight, op. cit., pp. 104-105, and supra ad Art. 39, pp. 465-469). Part of the difficulty arises from the fact that the uniforms of airmen are not necessarily the same as those of the troops on the ground. However, if airmen wear not their own but enemy uniform (ibid.), they are probably spies or saboteurs and therefore airborne troops who are not protected by this Article (para. 3), though they are covered by the general rule of Article 41. This means that they are protected under the conditions specified in that article, but no further (see para. 3);

(35) [(35) p.499] It is quite common for women to serve in the airforce (see J.M. Spaight, op. cit., p. 107);

(36) [(36) p.500] O.R. XV, p. 386, CDDH/236/Rev.1, para. 30. Von der Heydte, for his part, expresses the view that a pilot who parachutes from an aircraft is not considered to be captured as long as he is not under the control of the adversary, i.e., as long as he has not fallen into the power of persons who are qualified in the sense of international law to detain him. Up to that point they are combatants in the same way as members of enemy patrols who penetrate enemy territory. Therefore they must be in uniform or display a distinctive emblem and must bear arms openly. On the other hand, they can disguise themselves in order to escape capture, and they may resort to ruses of war. The adversary must treat them as any other enemy combatant and if they resort to the use of arms, the use of force is permitted. If they surrender, they become prisoners of war (See F.A. von der Heydte, in Bernhardt (ed.) op. cit., Instalment 3, 1982, p. 6);

(37) [(37) p.500] J.M. Spaight, op. cit., pp. 167-168 and 361-362, and R.L. Dunn, "Air-Sea Rescue Operations in Europe during World War II: Historical Perspective on a Footnote in International Law", 21 ' The Air Force Law Review, ' No. 4. 1979. pp. 602-619. Art. 18 of the First Convention of 1929 did not give any immunity to medical aircraft in these situations "in the absence of special and express permission" but cf. RICR, December 1940, pp. 992-995;

(38) [(38) p.500] It has been said in this respect that the transmission of distress signals by a pilot who has been brought down, does not in itself constitute proof that the person concerned does not intend to surrender because these signals are transmitted automatically when the pilot parachutes from the aircraft. For the statements made by one delegation, also see O.R. XIV, pp. 289-290, CDDH/III/ SR.30, paras. 15-17;

(39) [(39) p.500] J.M. Spaight, op. cit., pp. 139-142;

(40) [(40) p.501] Cf. supra, ad Art. 41, para. 2, cipher 4, p. 488;

(41) [(41) p.501] O.R. XV, p. 386, CDDH/236/Rev.1, para. 29; M. Bothe, K, Ipsen, K.J. Partsch, op. cit., p. 29, note 75, confirm that this was certainly the Committee's intention;

(42) [(42) p.501] Hague Regulations, Art. 2. This seems to have been the case in Crete during the Second World War, although these combatants were not considered to be prisoners of war after they were captured;

(43) [(43) p.501] Cf. supra, ad Art. 40, p. 476; for the Second World War, see J.M. Spaight, op. cit., pp. 104-105 and 313-317;