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Commentary - Art. 22. Part II : General protection of populations against certain consequences of war
    ARTICLE 22. -- AIR TRANSPORT


    PARAGRAPH 1. -- GENERAL PRINCIPLES

    1. ' Definition '

    Article 22 is designed to protect medical aircraft. The term "aircraft" ("aéronef"), taken from Article 36 of the First Geneva Convention (1), refers to aeroplanes, helicopters, airships or any other flying machines. Like the transport referred to in the previous Article , medical aircraft may only be used for conveying wounded, sick, the infirm and maternity cases.

    2. ' Protection '

    The essential difference between this Article and that dealing with land transport is the fact that it was thought necessary for medical aircraft to be protected when flying singly as well as when in convoy. Nevertheless they are to be respected only when flying at heights and times and on routes specifically agreed upon by all the parties to the conflict concerned. The experts who adopted this solution, [p.174] based on the First Convention, pointed out that under conditions of modern warfare painted markings were a useless system of identification; for 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 real security and provide belligerents with adequate safeguards.
    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 in each case of fixing routes and times of flights, such agreements will no doubt be made by a simple exchange of communications between the military commands and the responsible civilian authorities. Agreements of a general nature, concluded for the duration of hostilities, are also conceivable, however.
    If there is no agreement, belligerents will only bee 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 check at his disposal, especially when the aircraft is marked with distinctive signs.
    As in the previous provision, a medical aircraft, to be protected, 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 they may afford the only available means of transport. Aircraft used temporarily on medical 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, any medical aircraft must, during its relief mission, be used exclusively for that purpose, and must consequently be completely unarmed. That is obvious. It should be noted, lastly, that for reasons of military security it did not seem possible to confer protection on aeroplanes searching for wounded and sick or shipwrecked persons.

    PARAGRAPH 2. -- MARKING AND RECOGNITION

    Marking is not obligatory, because the conditions of flight will have been agreed upon by the Parties to the conflict. There is therefore no obligation under the Article to mark medical aircraft bearing known code letters and flying on routes and at heights and times settled beforehand. Marking is made optional, the decision being left to the discretion of the belligerents. Whether an aircraft will [p.175] be marked will depend on the terms of the agreement; if it is, in order that the distinctive emblem of the Convention may be clearly seen, it should be prominently displayed beside the national colours on the top, bottom and sides of the aircraft.
    It should be mentioned, however, that marking with the distinctive emblem appears, in actual fact, to be indispensable. A medical aircraft might, for instance, be diverted from the given route through no fault of its own; its protection would then depend solely on the sign of the red cross on a white ground.
    Besides being marked with a red cross, medical aircraft can be given other means of identification. They might, for example, be painted completely white, as white offers good visibility and is quite distinct from the colour of military aircraft. This solution was adopted in the 1929 Geneva Convention in the case of medical aircraft belonging to the armed forces.
    Belligerents may also quite possibly decide, in the agreements mentioned in paragraph 1, on other methods of marking or recognition likely to increase the safety of medical aircraft: the best means of establishing that an aircraft is genuinely on relief mission is permanent contact by radio with the ground and also with other aircraft. Every aircraft now has its own call sign. 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 flight and to question it as to the nature of its mission 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, to order it to land.

    PARAGRAPH 3. -- PROHIBITION OF FLIGHT
    OVER ENEMY TERRITORY

    The question of flight over enemy territory was the main stumbling-block in 1929. On this point it was found necessary to bow to the demands of military security, as otherwise the whole idea of protecting military medical aircraft might have had to be abandoned; the general staffs considered that the risk of unwarranted observation from such aircraft would have been too great. The same reasons appear to have been decisive in the case of civilian medical aircraft.
    The ban refers both to flights over the actual territory of the enemy power and to those over territory occupied by that power. Prohibition of flight over enemy territory would not, however, appear to be as prejudicial to the interests of humanity as has been believed. For [p.176] what does a medical aircraft actually do ? It takes medical personnel and supplies to the wounded and sick and the other people concerned, who are then brought back to hospitals behind the lines. For these purposes it flies over the territory of the country it is serving or territory occupied by that country's armed forces (2).
    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 place, 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.
    What is to happen if, as a result of an error in the notification 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, any belligerent conscious of his duty would warn the offending plane by 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 fully entitled to the protection due to them in all circumstances.

    PARAGRAPH 4. -- SUMMONS TO LAND

    The summons to land provides the adverse party with a safeguard; it is the one real means of defence against abuse. This extremely important provision has also been taken from the First Geneva Convention of 1949; 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 they are authorized to do so. It also applies to aircraft which are over their own territory but close to the 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 range, 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.
    [p.177] 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 see for 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. When the examination is over, the aeroplane with its occupants may resume its flight. That appears reasonable. The object of medical aviation is to permit rapid evacuation of the categories of person referred to in this Article. They should not, therefore, have to suffer from the enemy's exercise of 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. Lastly, it should not be forgotten that the plane has actually obeyed the summons to land; that fact must be placed to the credit of its occupants.
    If -- and it is to be hoped that such cases will be the exception -- if examination reveals that an act "harmful to the enemy", in the sense of Article 19 , has been committed, i.e. if the plane is carrying munitions or has been used for military observation, it loses the benefit of the Convention; the enemy may seize it and intern the crew and passengers or, should occasion arise, treat them in accordance with Article 5 of the Convention. On the other hand, wounded and sick who are being carried in the aircraft, will not lose their right under the Convention to the respect and medical care they need, subject to any punitive measures which may be taken in their case if they are personally guilty or guilty as accessories.


    Notes: (1) [(1) p.173] See ' Commentary ', Vol. I, pp. 285 sqq;

    (2) [(1) p.176] 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 (Chicago, December 7, 1944), the territory of a
    state is deemed to be the land areas and territorial
    waters adjacent thereto under the suzerainty, protection
    or mandate of such state. It did not appear necessary to
    enter into these details in the Geneva Convention;