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Commentary - Protection of medical aircraft
    [p.279] Article 24 -- Protection of medical aircraft


    General remarks (relating to Articles 24 -31)

    965 The articles on medical aircraft belong together and should have formed a separate chapter, as in the draft, but it was finally decided not to divide Section [p.280] II of Part II into chapters. (1) It therefore seems appropriate at this point to make a few comments on Articles 24 -31 as a whole. (2)

    966 Medical aircraft were first mentioned in international humanitarian law in 1929. On the basis of experience during the first World War, the Diplomatic Conference introduced a provision concerning medical aircraft into Article 18 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the field of 27 July 1929. Such aircraft had to be painted white and had to bear the distinctive emblem of the red cross or red crescent. They were permitted to fly up to the zone situated in front of clearing or dressing stations. A special and express agreement was needed for permission to fly over this zone, or over any territory under the control of the adverse Party.

    967 Far from developing these rather embryonic provisions of the 1929 Convention, the Diplomatic Conference of 1949 virtually paralyzed medical aviation when it subordinated all activity of medical aircraft of a Party to the conflict to a prior agreement with the adverse Party (cf. Article 36 , first Convention; Article 39 , Second Convention; Article 22 , fourth Convention).

    968 The main reason that government delegates adopted such a strict view was the impossible situation that arose with regard to marking medical aircraft adequately in the face of modern means of anti-aircraft defence which made it possible to fire at aircraft before they were visible. Admittedly another reason given, as a delegate at the CDDH remarked, was that "Parties had sought to use the aircraft for logistic purposes when they were not employed on medical evacuation". (3)

    969 As significant technical progress was made in due course in the field of signalling, the ICRC started to hope that the rules governing the use of medical aircraft could once again be made more flexible and permit the development of this essential means of modern medical transportation.

    970 The ICRC invited the Commission médico-juridique de Monaco to endeavour to develop this field. In 1965 the latter drafted technical specifications relating to additional means of identification of aircraft engaged on medical activities, as well as draft rules relating to medical transportation by air in time of armed conflict. The ICRC put these texts before the XXIst International Conference of the Red Cross (Istanbul, 1969), and then submitted them to a meeting of technical experts, which took place at the headquarters of the ICRC on 28 and 29 October 1970. (4)

    971 The question of medical aviation was subsequently put to the first session of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which was held in Geneva from 24 May to 12 June 1971, and has since then followed the path which led to the drafts submitted to the CDDH. (5)

    [p.281] 972 In the draft, medical transportation by air was the object of a chapter of seven articles. As was stated on the occasion of the presentation of these articles, they could be divided into three parts. The first three articles distinguish three zones, and lay down general rules for each of these. The following three articles contain provisions on application. Finally, the last article deals with the problem of medical aircraft flying over territory of States not Parties to the conflict, or landing there.

    973 The common provisions of the draft concerning medical transportation (6) were deleted by Committee II of the CDDH, justifying the inclusion of a general article at the beginning of the articles devoted to medical transportation by air. Apart from this, ommittee II retained the structure adopted in the draft, even though some fairly important modifications as to substance and form were introduced in the articles, particularly in accordance with various amendments and the extensive work of the various Working Groups and the Drafting Committee of Committee II.

    974 Articles 24 -31 form a balanced unit in the way they are presented, and while they take full account of safety requirements, which are particularly strict in the field of aviation, they should make it possible to give new life to medical aviation. In addition, it is clear that the technical provisions contained in the Regulations concerning identification (Annex I to Protocol I) constitute an essential complement to these articles. (7)

    975 Finally, it is necessary to ask how these articles can be harmonized with the provisions of the Conventions concerning medical aircraft. (8) In principle, as we have said before, the Protocol is additional to the Conventions. (9) However, in this particular case it is clear that there has been more than a simple development, as the provisions of the Protocol form a whole and some of them are even in conflict with the above-mentioned articles of the Conventions. Thus, as one delegate stated explicitly during the CDDH, it cannot be denied that the articles of the Protocol relating to medical aircraft must be considered, in the relations between Parties to the Protocol, to replace the above-mentioned articles of the Conventions (10)

    Text of Article 24

    976 As mentioned above, this general article, which was not contained in the draft, was added by Committee II because of its decision to delete the common provisions of the draft, and particularly Article 24, which laid down the principle of respect and protection for medical transports.

    977 The expression ' medical aircraft ' is defined in Article 8 ' (Terminology), ' subparagraph (j). (11)

    [p.282] 978 The concepts of respect and protection were mentioned above. (12)

    979 Medical aircraft must be "respected and protected, subject to the provisions of this Part".

    980 The amendment which gave rise to this article (13) stated "subject to" these provisions, and "in accordance with" these provisions, because the authors "desired to make it completely clear that while indicating the situations in which there was loss of protection, Chapter II did provide for such protection". (14) However, the final wording used in the article is perfectly clear: it clearly shows that this Part determines the extent and the limits of protection.

    981 The reference to the Part as a whole, and not merely to Articles 24 -31, is justified. As shown above, medical aircraft are defined in Article 8 ' (Terminology), ' and it is particularly important to remember that a medical aircraft, in order to be considered as such, must be "under the control of a competent authority of a Party to the conflict" (Article 8 -- ' Terminology, ' subparagraph (g)). Article 9 ' (Field of application), ' paragraph 2, which raises the possibility of making permanent medical units and transports available to a Party to the conflict is also very important for medical aircraft. Indeed, according to one delegate at the CDDH, it is "a key point in the text prepared by the Conference of Government Experts with a view to providing less-developed countries with medical aircraft facilities". (15)

    ' Y.S. '


    NOTES

    (1) [(1) p.280] On this subject, cf. supra, p. 245;

    (2) [(2) p.280] On this subject, see particularly CE/7b, pp. 39-40; ' Commentary Drafts, ' pp. 34-35; O.R. XI pp. 502-504, CDDH/II/SR.45, paras. 6-15;

    (3) [(3) p.280] O.R. XI, p. 503, CDDH/II/SR.45, para. 12;

    (4) [(4) p.280] Cf. Document D.1169, ICRC, Geneva;

    (5) [(5) p.280] On this subject, cf. supra, p. 107;

    (6) [(6) p.281] On this subject, cf. supra, p. 245;

    (7) [(7) p.281] On this subject, cf. commentary Annex I, infra, p. 1137;

    (8) [(8) p.281] Viz. Articles 36, First Convention; 39, Second Convention and 22, Fourth Convention;

    (9) [(9) p.281] On this subject, cf. supra, pp. 20-21;

    (10) [(10) p.281] Cf. O.R. XI, p. 529, CDDH/II/SR.47, para. 25;

    (11) [(11) p.281] Cf. commentary Art. 8, sub-para. (j), supra, pp. 131-132;

    (12) [(12) p.282] Cf. commentary Art. 10, supra, p. 146;

    (13) [(13) p.282] Cf. O.R. III, p. 130, CDDH/II/82 and CDDH/II/82/Rev. 1;

    (14) [(14) p.282] O.R. XI, p. 509, CDDH/II/SR.45, para. 41;

    (15) [(15) p.282] Ibid., p. 510, para. 42;