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Commentary - Landing and inspection of medical aircraft
    [p.315] Article 30 -- Landing and inspection of medical aircraft


    [p.316] General remarks

    1100 In an armed conflict any aircraft of a Party to the conflict flying over an area under the control of the adverse Party -- or where elements of the latter's armed forces are located -- constitutes a threat to that Party. The agreements and notifications required for such overflight were examined above (Article 29 -- ' Notifications and agreements concerning medical aircraft). ' The adverse Party may require aircraft to land or alight on water in areas under its control during such overflight, even if there is an agreement. Obviously such aircraft will be required to do so almost automatically in case of flights carried out without, or in contravention of, the terms of an agreement. Finally, a medical aircraft may have to land or alight on water on its own initiative on territory under the control of the adverse Party because of damage, technical difficulties or adverse weather conditions.

    1101 This article deals with this question as a whole, i.e. with the order which may be given to land or alight on water, with inspection on the ground and with the fate of the aircraft and the treatment of its occupants.

    Paragraph 1

    1102 Aircraft covered in this paragraph are "medical aircraft flying over areas which are physically controlled by an adverse Party, or over areas the physical control of which is not clearly established", i.e., aircraft in situations provided for in [p.317] Articles 27 ' (Medical aircraft in areas controlled by an adverse Party) ' and 26 ' (Medical aircraft in contact or similar zones), ' respectively. (1)

    1103 However, it should be noted that, in addition to "areas the physical control of which is not clearly established", Article 26 ' (Medical aircraft in contact or similar zones) ' also covers the "parts of the contact zone which are physically controlled by friendly forces" and that aircraft flying over such parts do not come within the scope of Article 30 .

    1104 ' All medical aircraft flying over the areas mentioned above ' may be ordered to land or to alight on water, regardless of whether the flight has been made in accordance with an agreement, in violation of an agreement, or without an agreement. It is therefore important to emphasize the fact that even a medical aircraft flying in accordance with the terms of an agreement may be ordered to land or to alight on water. This is a provision in the interest of the security of the Parties to the conflict; an agreement guaranteeing that a medical aircraft could not be ordered to land for inspection was considered to entail too great a risk that the benefitting Party might abuse such a guarantee to its own advantage, by using the aircraft for other purposes than the purely medical purposes to which it should be exclusively assigned.

    1105 The aircraft may be ordered "to land or to alight on water, as appropriate". Alighting on water clearly refers only to hydroplanes or to amphibious aircraft. Without exception all steps should be taken to ensure that the aircraft can land under adequate safety conditions.

    1106 If a medical aircraft is ordered to land, this can only be for the clearly specified reason of ' permitting inspection, ' in accordance with the provisions of the following paragraphs.

    1107 Finally, there is an ' obligation ' for medical aircraft flying over the areas mentioned in this paragraph to obey the order to land or to alight on water. An aircraft refusing to comply with such an order may be forced to land, or even as a last resort, be shot down. (2) It is therefore of paramount importance that the captain of an aircraft receiving such an order to land should heed the obligation to comply with it. The lives of his passengers are at stake. (3)

    Paragraph 2

    1108 Like paragraphs 3 and 4, this paragraph concerns medical aircraft on the ground, in the power of the adverse Party. They may have bee "ordered" to land or alight in situations described in paragraph 1, but they may also have landed or alighted ' on their own initiative ', because of damage, technical difficulties or adverse weather conditions, or even simply by mistake.

    [p.318] 1109 As mentioned above in paragraph 1, an aircraft may be ordered to land (or alight) so as to permit inspection. This paragraph specifies that the inspection must be limited to verify particular points described below.

    1110 An inspection relating to other points, such as the technical characteristics of the aircraft, would therefore be abusive.

    1111 Moreover, three rules are given, aimed at ensuring the best possible treatment for the wounded and sick in such circumstances, which could be particularly gruelling for them.

    1112 First, such inspection "shall be commenced without delay" and "shall be conducted expeditiously". These two factors are both aimed at reducing as far as possible the time that the wounded, sick or shipwrecked in the aircraft have to wait. The first condition is generally addressed to the authorities of the Party undertaking the inspection. They must do all they can to ensure that personnel authorized to carry out the inspection are available at very short notice. This applies in particular, if they wish to investigate this, to personnel with the technical competence to distinguish equipment "intended solely to facilitate navigation, communication or identification" from that intended "to collect or transmit intelligence data". (4) The second part of the rule is more particularly addressed to the personnel charged with the inspection; they should carry out their task as rapidly as possible.

    1113 The second rule is that the wounded and sick may not be required to be removed "unless their removal is essential for the inspection". The purpose of this rule is also obviously to protect the interests of the wounded and sick. The rule applies neither to the crew nor to shipwrecked persons who may have been taken on board the aircraft and are not wounded or sick. The term "essential" means that the removal is necessary to achieve the purposes for which the inspection may be carried out; for example, in Committee II reference was made to the case that there was suspicion that equipment intended for transmitting information was concealed in the aircraft, and where the wounded and sick might have been used to conceal such equipment. (5)

    1114 Finally, the third rule should be considered as a general rule of which the first two are only particular applications. The requirement that the inspection should be carried out rapidly, and the wounded and sick should be removed only if their removal is essential, certainly has the aim of ensuring that "the condition of the wounded and sick is not adversely affected by the inspection or by the removal". The overriding importance of the last rule compared with the two others is clearly revealed by the beginning of the sentence, which requires the Party concerned to "in any event ensure" that such an adverse effect does not occur, i.e., whether the wounded are removed or whether they stay on board. In more general terms, it could even be said that these three rules merely specify for this particular situation the general obligation given in Article 10 ' (Protection and care) ' to respect and protect the wounded, sick and shipwrecked and treat them humanely.

    [p.319] 1115 In fact it is clear that, in general, removal is harmful (which is the reason for the second rule quoted above) particularly if the inspection as required is conducted expeditiously. However, the possibility that it might be ' in the interests of the wounded and sick ' to get them off the aircraft cannot be excluded. As stated in Committee II, there are cases when leaving the wounded and sick on board could be even more harmful to their state of health than their removal would be. (6) The example given was of an aircraft landing in a country with a tropical climate.

    1116 As regards responsibility for the ' removal, ' this obviously does not end with merely transporting the wounded and sick from the aircraft, but also concerns finding them provisional accommodation in a place where they can be given adequate care.

    Paragraph 3

    1117 This paragraph lists the three elements which are to be investigated during the inspection and are determining factors in deciding the fate of the aircraft and the treatment of its occupants.

    1118 The first element is the question whether the aircraft really is a medical aircraft as defined in Article 8 ' (Terminology), ' sub-paragraph (j). Thus it must be a medical transport by air which is "under the control of a competent authority of a Party to the conflict" and "assigned exclusively to medical transportation", i.e., the transportation of the "wounded, sick, shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies protected by the Conventions and by this Protocol". (7)

    1119 The second element to be ascertained during the inspection is that the aircraft is not in violation of the conditions prescribed in Article 28 ' (Restrictions on operations of medical aircraft) '. In this respect, as mentioned above, it might be argued that the restrictions imposed by the first three paragraphs of Article 28 ' (Restrictions on operations of medical aircraft) ' are already covered by the actual definition of medical aircraft, as this must be assigned exclusively to medical purposes. (8) Apart from this, reference should be made to the whole of the commentary on Article 28 ' (Restrictions on operations of medical aircraft). ' (9)

    1120 Finally, the third element is the question whether the aircraft has "flown without or in breach of a prior agreement where such agreement is required". Thus this refers only to cases where agreement is ' required, ' viz.:

    - ' first, ' flights over contact or similar zones for the purpose of searching for the wounded, sick or shipwrecked (10) (an agreement for flights over such zones for other medical purposes being strongly recommended but ' not required); ' [p.320]
    - ' secondly, ' flights over areas under the control of the adverse Party; (11)
    - ' thirdly, ' flights over areas under the control of the adverse Party for the purpose of searching for the wounded, sick and shipwrecked, in which case the agreement must specify permission to carry out such search in such areas. (12)

    1121 The flight may have been made "without" or "in breach of" a prior agreement. Only the latter case could be problematic in so far as there may have been a lack of specification as to the limits beyond which the agreement could be considered as violated. In principle the agreement itself should be sufficiently flexible, particularly as regards the flight duration, to take into account the unknown factors involved in aerial navigation. At any rate the principle of good faith should be applied to determine whether there has been any real violation of the agreement.

    1122 Finally, the most difficult point of the paragraph concerns the term "has flown". The French text uses the term "entrepris", which could indicate that an aircraft which had made a flight without or in breach of the terms of a required agreement, doing so because of damage, technical difficulties or weather conditions but ' without the intention of committing a violation, ' would not be in conflict with the condition prescribed in paragraph 3 (c). However, the amendment which was the inspiration for the article as finally adopted was in English, and the English text, by using the term "has flown", removes any doubt that might exist in this respect (13). Thus it is clearly the objective fact that a flight has been carried out without or in breach of the terms of an agreement that is the determining factor here, ' irrespective of the will ' to fly without an agreement or in conflict with such an agreement.

    1123 In fact, this conclusion is in line with the first Convention of which the final paragraph of Article 36 states that:

    "In the event of an involuntary landing in enemy or enemy-occupied territory, the wounded and sick, as well as the crew of the aircraft shall be prisoners of war. The medical personnel shall be treated according to Article 24 and the Articles following." [All persons mentioned in this paragraph are, of course, members of the armed forces under the régime of the Conventions (Y. S.). ]

    1124 When all three elements mentioned above apply, the medical aircraft "shall be authorized to continue the flight without delay". The continuation of the flight will thereupon be subject only to the usual technical requirements prescribed also for civilian flights. It will be up to the captain to ascertain that his aircraft is able to continue the flight and that the necessary facilities are made available by the local authorities for the flight to continue in normal conditions; there is an [p.321] obligation to allow the aircraft to leave and no obstacles may be placed in the way of such departure.

    1125 As regards the occupants of the aircraft, in principle they must also be authorized to continue their flight. This rule was laid down in the 1973 draft without any restrictions. Its scope was later limited to those occupants (whether they are wounded, sick or shipwrecked, or medical or religious personnel) belonging either to the adverse Party to that which carried out the inspection, or to a State not involved in the conflict. (14) On the other hand, the Rapporteur of the Drafting Committee of Committee II stated that it "would have been unreasonable and had clearly not been intended by the original drafters" to prohibit a Party to the conflict from taking "persons belonging to its own side from an aircraft landing on its territory or on territory controlled by it". (15) In this respect it should be noted that a Party cannot be prevented from keeping its own nationals, even against their wishes, as the latter cannot seek political asylum in the aircraft, which does not enjoy extraterritorial rights. For the same reason, the other occupants of the aircraft have the ' right ' to continue their flight, but they are not under an ' obligation ' to do so. As a matter of fact, it is quite clear that the captain of the aircraft authorized to continue his flight cannot ' oblige ' the other occupants to remain in the aircraft. There is nothing to prevent nationals of a State not involved in the conflict to request admission into the territory of the Party which carried out the inspection, nor could even nationals of the adverse Party -- that to which the aircraft belongs -- be prevented from seeking political asylum. Finally, the article does not mention the case of seriously wounded persons whose condition is such that they cannot continue to travel. Insofar as such a wounded person is no longer able to express himself, the decision will be up to the captain of the aircraft. The wounded person left behind in this way, provided that he is not a national of a co-belligerent State or a State which is not involved in the conflict and which has normal diplomatic representation with the Party to which he is entrusted, will then be covered by the Conventions (first and Third, if he is a member of the armed forces or has equivalent status; fourth, if he is a civilian) and by Protocol I.

    Paragraph 4

    1126 This paragraph deals with the case in which inspection discloses that at least lone of the three conditions which should be verified is not fulfilled. As paragraph 3 was concerned with the situation in which each of the three conditions is fulfilled, paragraph 4 already applies in fact if only one of them is not fulfilled. (16)

    1127 When one of these conditions is not fulfilled, paragraph 4 indicates what ' may ' happen to the aircraft and what ' must ' happen to its occupants.

    1128 "The aircraft may be seized". This is therefore an option for the Party into whose hands the medical aircraft or alleged medical aircraft of the adverse Party [p.322] (if the inspection discloses that it is not, in fact, such an aircraft) has fallen. It is to be hoped that this option will rarely be used. Though it is easy to understand that this right will be used unhesitatingly in cases where the aircraft has deliberately flown in violation of the provisions of the Protocol or of a prior agreement, it seems that such a Party should carefully consider the possibility of authorizing aircraft to continue their flight if they have not wilfully committed a breach but were the victims of damage, technical problems or adverse weather conditions. In the event that the aircraft is authorized to leave, the fate of its occupants will be established in accordance with our comments on paragraph 3. (17)

    1129 In the case that the seized aircraft had been assigned as a permanent medical aircraft, i. e., that it was assigned exclusively to medical purposes for an indeterminate period, (18) it may only be used thereafter as a medical aircraft by the Party which has seized it. There is no limitation on this obligation, and it therefore lasts until the end of the conflict concerned.

    1130 No mention is made regarding the use to be made of an aircraft when the inspection has disclosed that it is not a medical aircraft, nor is it mentioned what is to be done with a ' temporary ' medical aircraft, i.e., one "devoted exclusively to medical purposes for limited periods". (19) In both cases the aircraft may be assigned to purposes other than medical purposes. Obviously the distinctive emblem must be carefully removed in this case and the means of identification laid down in the Protocol for medical aircraft may no longer be used.

    1131 As regards the occupants of a seized aircraft, they must be treated "in conformity with the relevant provisions of the Conventions and of this Protocol". This very general provision requires an explanation. We will attempt to summarize possible categories of occupants with the provisions of the Conventions and the Protocol applicable to each of them. (20)

    a) Nationals of a co-belligerent State or of a State which is not involved in the conflict and which has normal diplomatic relations with the State in whose power they are, no longer enjoy the protection of the Conventions and of the Protocol, apart from Article 75 ' (Fundamental guarantees) ' of the latter. (21) Their fate must be settled between the States concerned. Apart from this, the provisions of human rights law obviously continue to apply.
    b) Nationals of the Party seizing the aircraft, if they are wounded or sick, must be treated humanely and receive the care to which this category is entitled (22) If they are imprisoned or prosecuted for a reason related to the conflict -- particularly if they are considered to be traitors -- Articles 11 ' (Protection of [p.323] persons) ' and 75 ' (Fundamental guarantees) ' of the Protocol will also apply to them. (23) If they are neither wounded nor sick and are not imprisoned nor committed to trial, they will no longer benefit from the protection of the Conventions in their relations with their own Party. As stated in subparagraph (a), the protection afforded by human rights law obviously continues to apply.
    c) The civilian wounded, sick and shipwrecked belonging to the adverse Party, or to a co-belligerent State or a State not involved in the conflict, but not having normal diplomatic relations with the Power into whose hands they have fallen, will come within the scope of the fourth Convention -- particularly Section II of Part III and if they are interned, of Section IV -- and of the Protocol (particularly Section III of Part IV). Moreover, if they are at the same time wounded or sick, they must also be treated in accordance with those provisions of the Conventions and the Protocol which protect this category of victims.
    d) The military wounded, sick and shipwrecked belonging to the adverse Party will be prisoners of war and be covered by the Third Convention. If they are at the same time wounded or sick they must also be treated in accordance with the provisions of the Conventions and the Protocol protecting such victims.
    e) The wounded, sick and shipwrecked who do not fall in one of the categories mentioned above -- such as mercenaries -- will at least enjoy the fundamental guarantees laid down in Article 75 ' (Fundamental guarantees), ' apart their protection as sick, wounded or shipwrecked.
    f) The crew of the medical aircraft, whether this is the personnel required for the functioning of the aircraft, or the personnel charged with caring for the wounded and sick, are considered as medical personnel in the sense of the Protocol. (24) Medical personnel who, though not employed to take care of the wounded and sick on board the aircraft, are transported by the latter, fall in the same category. The rules of the Conventions and the Protocol concerning medical personnel apply to all such persons (particularly Chapter IV of the first Convention and Article 15 of the Protocol -- ' Protection of civilian medical and religious personnel) '.
    g) If the inspection discloses that the aircraft is not actually a medical aircraft, every member or alleged member of the medical personnel responsible for such abuse will lose his status of medical personnel and, depending on his situation, will be considered as a prisoner of war or simply as a civilian, protected by the fourth Convention or not, depending on his nationality. (25) He is further covered by Article 75 of Protocol I ' (Fundamental guarantees) ' particularly if he is committed to trial and does not enjoy any better protection. In either case he may be tried and convicted for such a breach of international humanitarian law which, depending on the circumstances, may even be considered as a grave breach. (26)

    [p.324] 1132 Finally, it should be noted that a debate took place in Committee II regarding the treatment to be given the wounded and sick. The main amendment to Article 31 (27) (the present Article 29 -- ' Notifications and agreements concerning medical aircraft) ' distinguished between the case that inspection revealed that the aircraft was not a medical aircraft or was in violation of the provisions of the present Article 28 ' (Restrictions on operations of medical aircraft) ' and the case that the aircraft had flown without or in breach of an agreement. In the last case it was provided that the aircraft could be seized only "if the seizing Party was in a position to provide adequate medical facilities for the wounded and sick aboard". However, this requirement seemed unacceptable to some delegates, who considered that this discriminated against countries which do not possess "the level of technical development required to satisfy the conditions of the proposed text". (28) This was countered with a claim that the expression "adequate facilities for the necessary medical treatment" should be understood to mean "the level of facilities accorded by a given country to its own citizens". (29) This restriction has admittedly disappeared from the text finally adopted, but the general obligation remains to treat all occupants, i.e., also the wounded and sick, "in conformity with the relevant provisions of the Conventions and of this Protocol". When this article was adopted in Committee, one delegate emphasized the fact that the general obligation of Article 10 ' (Protection and care), ' according to which the wounded and sick should "be treated humanely and in all circumstances, and that they should receive to the fullest extent practicable and with the least possible delay, the medical care required by their condition", obviously also applied in the context of this paragraph. (30) However, it should be noted that there is no need to fear discrimination against countries that are technically underdeveloped, because the requirement is that such States act ' to the best of their ability. ' (31)

    1133 It remains to be said that a Party to the conflict truly unable to ensure the treatment required by the condition of the wounded and sick -- for example, because personnel or hospital facilities are overburdened -- should allow a medical aircraft to continue on its way, or find another way of transferring such wounded and sick rapidly, without endangering their health, to a place where adequate medical care can be administered.

    ' Y.S. '


    NOTES

    (1) [(1) p.317] For details on these areas and zones, cf. commentary Art. 26, supra, p. 287, and Art. 27, supra, p. 293;

    (2) [(2) p.317] On this subject, cf. commentary Art. 26, para. 1, supra, pp. 291-292, and Art. 27, para. 2, supra, pp. 295-297;

    (3) [(3) p.317] Cf., however, commentary Art. 26, para. 1, second sentence, second part, supra, pp. 291-292;

    (4) [(4) p.318] Cf. commentary Art. 28, paras. 1 and 2, supra, pp. 301-303;

    (5) [(5) p.318] Cf. O.R. XI, p. 542, CDDH/II/SR.48, para. 22. Cf. also commentary Art. 31, para. 3, infra, pp. 331-332;

    (6) [(6) p.319] Cf. O.R. XI, pp. 541-542, CDDH/II/SR.48, paras. 18 and 24;

    (7) [(7) p.319] Cf. Art. 8, sub-paras.(f), (g), and (j), and, for further details, the commentary thereon, supra, pp. 130-132;

    (8) [(8) p.319] Cf. commentary Art. 8, sub-paras. (g) and (j), supra, pp. 130-132;

    (9) [(9) p.319] Supra, p. 299;

    (10) [(10) p.319] Cf. Art. 26 and Art. 28, para. 4;

    (11) [(11) p.320] Cf. Art 27;

    (12) [(12) p.320] Cf. Art. 28, para. 4;

    (13) [(13) p.320] Cf. O.R. III, p. 150 (French version) and p. 146 (English version), CDDH/II/82/Rev. 1, draft Article 31. Paragraphs 3, 4 and 5 of Article 31 (present Art. 30) proposed in this amendment, reveal that the original English expression "has flown", had already been translated by "a entrepris son vol". Thus this is undoubtedly a matter of imprecise translation and not a question of hesitation in Committee Il on a point of substance;

    (14) [(14) p.321] On the exact meaning of the expression "a neutral or other State not Party to the conflict", cf. commentary Art. 2, sub-para. (c), supra, pp. 61-62;

    (15) [(15) p.321] O.R. XII, p. 21, CDDH/II/SR.57, para. 7;

    (16) [(16) p.321] On these three conditions, cf. supra, pp. 319-320;

    (17) [(17) p.322] Cf. supra, pp. 320-321;

    (18) [(18) p.322] Cf. Art. 8, sub-para. (k);

    (19) [(19) p.322] Ibid;

    (20) [(20) p.322] For the sake of simplification, we will not deal with the situation, which is exceptional nowadays, where some of the occupants are nationals of a State which is not a Party to the Conventions. However, in this respect it should be noted that the fundamental rules of the Conventions are presently recognized as customary law. Thus they would apply even to this category of occupants;

    (21) [(21) p.322] Cf. commentary Art. 75, para. 1, infra, pp. 866-871;

    (22) [(22) p.322] Cf. especially Art. 10 of the Protocol;

    (23) [(23) p.323] On this subject, cf. commentary Art. 11, para. 1, supra, p. 152, and Art. 75, para. 1, infra, pp. 866-871;

    (24) [(24) p.323] Cf. Art. 8, sub-para. (e);

    (25) [(25) p.323] Cf. Art. 4, Fourth Convention;

    (26) [(26) p.323] Cf. commentary Art. 85, para. 3(f), infra, pp. 998-999;

    (27) [(27) p.324] O.R. III, p. 146, CDDH/82/Rev.1;

    (28) [(28) p.324] O.R. XII, p. 23, CDDH/II/SR. 57, para. 25;

    (29) [(29) p.324] Ibid., p. 24, para. 28;

    (30) [(30) p.324] Cf. ibid., p. 40, CDDH/II/SR.59, para. 11;

    (31) [(31) p.324] On this subject, cf. commentary Art. 10, para. 2, supra, pp. 147-148, and Art. 11, para. 1, supra, pp. 154-156;