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Commentary - Art. 36. Chapter VI : Medical transports
    ARTICLE 36 -- MEDICAL AIRCRAFT


    [p.285] GENERAL

    The use of aviation for medical purposes received legal sanction in 1929, when the Diplomatic Conference adopted the new Article 18 of the Geneva Convention . This was in fact the most important innovation in 1929.
    The idea of medical aircraft dates, however, from the XIth International Red Cross Conference in 1923, which decided, on the proposal of the French Delegation, to place the matter on the Agenda of the next Conference. A complete draft of a Convention for the adaptation to aerial warfare of the principles of the Geneva Convention of 1906 was accordingly prepared, discussed by a committee of experts, and then approved by the XIIth International Red Cross Conference in 1925. It was subsequently transmitted to the Swiss Federal Council with a view to its being placed before a Diplomatic Conference. The Swiss Government, however, when convening the Diplomatic Conference of 1929 for the purpose of revising the Geneva Convention and concluding a Convention on the treatment of prisoners of war, did not think it advisable to add a new and complex problem to the already heavy programme.
    During the actual Conference, France and Great Britain took up the question again. The subject had become so topical and so important that it appeared impossible to revise the Geneva Convention without making provision for the use of medical aircraft.
    There was no time to draw up a complete set of detailed provisions; and Governments, not having had sufficient notice that the matter [p.286] would be on the Agenda, had not been able to include the necessary experts in their delegations. The problem, therefore, was only settled in summary fashion by the introduction into the Convention of the new Article 18 , laying down the basic principles.
    Aware of the inadequacy of this solution, the Conference recommended in its Final Act "that the countries signatory to the Geneva Conventions should meet in conference, at an early date, for the purpose of regulating in as wide a sense as may be expedient the utilization of air ambulances in time of war".
    The International Committee of the Red Cross accordingly submitted to the XIVth International Red Cross Conference in 1930 a draft adaptation to aerial warfare of the principles of the Geneva Convention, drawn up by MM. Ch. Julliot and P. Des Gouttes. (1) The Conference approved this draft, and instructed the International Committee of the Red Cross to transmit it to the Swiss Government with a view to its figuring on the Agenda of the next Diplomatic Conference, which was fixed for 1940, but was postponed owing to the war.
    In 1945, when the International Committee of the Red Cross resumed its work on the revision of the Geneva Conventions, it still considered that it would be well to draw up detailed regulations regarding the use of medical aircraft. It therefore placed the special draft Convention before a meeting of experts which it had convened, requesting them to decide, in the light of experience in the various countries, on what points the draft should be extended or modified.
    The International Committee at the same time advocated reverting to the idea -- put forward by the Diplomatic Conference of 1929 and supported by MM. Julliot and Schickelé in 1935 -- of extending the Geneva Convention to cover the use of medical aircraft, and abandoning the attempt to adapt its principles to aerial warfare. In actual fact, the protection afforded by the Geneva Convention to the wounded and to the buildings and personnel reserved for them, is as valid in aerial as in land warfare. Medical aircraft are merely a means, like any other, of transporting or helping the wounded. The special conditions prevailing at sea, which made it appear advisable in 1907 to adapt the principles of the Geneva Convention to maritime warfare, do not exist in the air.
    [p.287] The Government experts quite agreed with this view. On the other hand, they did not consider that medical aircraft should form the subject of detailed regulations. The most they would admit was that the substance of Article 18 of the 1929 Convention might be retained, provided it was adapted to flights over neutral countries. They argued that the Article in question had only found a limited application during the Second World War, and that technical progress in fighter aircraft and anti-aircraft artillery rendered somewhat unreal any attempts to develop the use of protected medical aircraft on a wide scale. On the other hand, the practice of evacuating the wounded by air under fighter escort had been adopted to an increasing extent.
    The same opinion prevailed at the 1949 Diplomatic Conference, despite a proposal which aimed at allowing greater use to be made of medical aircraft. This proposal was put forward by the Delegations of Monaco and Finland, who insisted that aeronautical progress, far from condemning medical aviation, offered excellent possibilities of bringing rapid aid to the wounded and of transporting them to the centres behind the lines, often at a great distance, where they would receive adequate treatment. The draft Articles submitted by these delegations recommended that medical aircraft should be recruited more widely and authorized their flight over enemy territory. (2)
    Since the 1929 provisions were, in short, left unchanged by the Diplomatic Conference, it is to be hoped that the States applying them will do so in as generous and humane a fashion as possible, so that the resources which medical aircraft offer for the protection of the wounded and the sick may be exploited to the full.
    "When an American C-97 military transport plane," writes General A. Schickelé, Medical Inspector of the French Army Reserve and one of the pioneers of medical aviation, "has proved capable, after conversion requiring only twenty minutes work, of taking on board sixty-seven wounded lying on stretchers, with medical personnel available to look after them ' en route ' -- using, if need be, a real operating theatre -- and of conveying them from Japan to the United. States of America in a single non-stop flight of 9,700 kilometers in from thirty to forty hours, it would be folly to miss the significance of such possibilities, and deny them to medical transport in future armed conflicts".

    [p.288] PARAGRAPH 1 -- DEFINITION AND PROTECTION

    Medical aircraft have the same role under the 1949 Convention as in the past: flying alone or in convoys, they may be used both for the evacuation of the wounded and sick, and for transporting medical personnel and material. Like any other means of transport, they may be the property of the army, or of voluntary aid societies, or have been requisitioned. As in 1929, it was not considered possible, for reasons of military security, to accord protection to aircraft searching for wounded.
    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, times and on routes specifically agreed upon between the belligerents concerned." The experts who recommended this solution pointed out that under conditions of modern warfare, systems of identification based only on the painting of machines were useless. Aircraft were sometimes fired upon from the ground, 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 a general nature, concluded for the duration of hostilities.
    If there is no agreement, belligerents will only be able to use medical aircraft at their own risk and peril. 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, an aeroplane, to be protected, need not be specially equipped or permanently detailed for medical work. It may [p.289] 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 routes have been bombarded, they 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.
    Moreover, 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.
    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 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 VII, 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 bear, clearly marked, 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 does not have any.
    The 1929 Convention laid down that medical aircraft should be painted entirely white, like hospital ships. For the reasons 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 [p.290] 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, and this will facilitate 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 machine 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. This is a wise provision, 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 the permanent contact it can establish by radio with the ground and with other aircraft. Every aircraft now has its own code signal. (3) Surely a special international signal for medical missions could be agreed upon? Similarly, a short international code, like those used in navies and air forces, 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 the 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 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 this 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 1 March 1950 in pursuance of the said Resolution, and which are at present the subject of discussions between the Powers signatory to the 1949 Conventions.

    [p.291] 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 idea 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 material 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. (4)
    Finally, it must not be forgotten that the 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 15, paragraph 3 , of the Convention. (5)
    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 [p.292] radio or order it to land (paragraph 4) before resorting to extreme measures. It is clear that once the machine is on the ground, 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 LAND

    The summons to land 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 land. It applies in the first place to aircraft flying over enemy or enemy-occupied territory, whether or not authorized to do so. It 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 lawful to open fire on it. If the machine is already out of reach, the summons obviously become 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 does not state how the summons is to be given: this is a technical question, into the details of which there was no need to enter.
    What is to happen to a plane after it has obeyed the summons to land? The enemy can examine it and will, in normal cases, be able to convince himself that the machine is being used exclusively for medical purposes. The necessary steps will then be taken to ensure that the wounded do not suffer from the delay imposed.
    The 1929 Convention, treating this case and an involuntary landing alike, decided 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. This meant that the wounded and sick would become prisoners of war, as they do when a belligerent intercepts an enemy 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, restored, following the usual procedure. The crew was to be sent back, [p.293] on condition that its members took no part in operations until the end of hostilities, medical service excepted.
    The 1949 Convention, has, on this point, 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 the 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 plane are guilty of no irregularities) because the summons has, so to speak, been wrongly made. Finally, it should not be forgotten that the plane has actually obeyed the summons to land; this fact must be placed to the credit of its occupants.
    What should happen -- and it is to be hoped that such cases will be rarest of exceptions -- if examination reveals that an act "harmful to the enemy," in the sense of Article 21 , has been committed, i.e. if the plane is carrying munitions or has been used for military observation? The machine loses the benefit of the Convention; the enemy may seize it, take the wounded prisoner, and treat the medical staff and material according to the general rules of the Convention.

    PARAGRAPH 5 -- FORCED LANDINGS

    An involuntary or forced landing occurs when a medical aircraft, without receiving a summons, is obliged by weather conditions, engine trouble or any other cause to land in enemy or enemy-controlled territory.
    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 this feasible. It was held that considerations of military security must have priority. 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 Convention (Articles 24 ff. ). Even though Article 36 does not actually say so, the material will be governed by the provisions of Articles 33 and 34 . 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) [(1) p.286] Another draft Convention was drawn up
    unofficially by MM. Julliot and Schickelé in 1935;

    (2) [(1) p.287] For further details see Professor Paul DE LA
    PRADELLE, ' La Conférence diplomatique et les nouvelles
    Conventions de Genève du 12 août 1949, ' pages 199 ff.;

    (3) [(1) p.290] Technical progress may, perhaps, make it
    possible to produce a code signal which can be picked up
    by radar. Flares might also be used;

    (4) [(1) p.291] 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
    Chicago Convention on International Civil Aviation
    concluded at Chicago on 7 December 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;

    (5) [(2) p.291] See above, page 155;