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Commentary - Art. 40. Chapter V : Medical transports
    ARTICLE 40. -- FLIGHT OVER NEUTRAL COUNTRIES; LANDING
    OF WOUNDED


    [p.223] This Article is completely new and represents an advance in humanitarian law.
    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 those 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 Conventions, during the Peace Conference at The Hague in 1907.

    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 (2). On the other hand, it did not seem feasible to leave neutral States at liberty to permit 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 [p.224] 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 the belligerents.
    The Convention itself imposes three express conditions or restrictions, based on the preceding Article dealing with the rights of belligerents. Medical aircraft must give neutral Powers previous notice of passage over their territory; they must obey any summons to alight; 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 (3).

    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 rôle 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 he is transporting in neutral territory, not merely for the short time he stops there, but to leave them there. He may do so if the local authorities in the neutral country agree. In such a case, 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.
    [p.225] The obligation imposed on the neutral Power to intern wounded and sick landed by a medical aircraft belonging to a belligerent is qualified by the words "where so required by international law". As regards the meaning of that phrase, the reader should refer to what has already been stated above, on p. 109.
    In addition, readers particularly interested in the principles governing the situation of war victims landed in a neutral country may refer to the passage of the present Commentary which deals with this matter in detail, in connection with wounded, sick and shipwrecked persons landed by hospital ships (4). The elements of the problem are, however, different in the case of aircraft; for instance, the right of inspection as exercised by ships on the high seas does not exist here.


    * (1) [(1) p.223] The International Committee of the Red Cross
    would like to express its gratitude to Professor 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 40 of the present Convention;

    (2) [(2) p.223] In time of war, a neutral State has absolute
    sovereignty over its air space. See OPPENHEIM-LAUTERPACHT:
    op. cit., Vol. II, p. 725;

    (3) [(1) p.224] 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
    obviously have no right to pursue or attack over neutral
    territory;

    (4) [(1) p.225] See above, p. 121 ff.;