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Commentary - Medical aircraft in areas not controlled by an adverse Party
    [p.283] Article 25 -- Medical aircraft in areas not controlled by an adverse Party


    982 Article 25 is the first of three articles which lay down general rules on the use of medical aircraft according to the area or zone where they are used.

    [p.284] First sentence

    983 The expression ' physically controlled ' was finally preferred to the word ' controlled ' on its own, used in the text of the draft (1) and in the main amendment to this. (2) ' Physically ' clearly indicates, as the authors of the above-mentioned amendment had also intended, that it was considered desirable to avoid "the use of terms having legal connotations". (3) Thus this does not refer to the sovereignty of a Party over such territory, but to its actual domination (the presence of its armed forces) which alone makes it possible to ensure the safety of medical aircraft. Obviously this element of safety is the determining factor in this context.

    984 The expression by ' friendly forces ' was preferred to the expression ' by itself or by its allies ' , used in the draft. As a matter of fact, the latter did not cover the armed forces of a liberation movement engaged in an armed conflict in accordance with Article 1 ' (General principles and scope of application) ', paragraph 4, of the Protocol. (4) It is clear that "friendly forces" covers both the armed forces of a Party to the conflict and allied forces. (5)

    985 The draft laid down the same requirement with regard to land areas and sea areas. Both should be "controlled". During the discussions in the Committee, the sponsors of the above-mentioned amendment emphasized the fact that though land areas -- obviously including inland waters (lakes, rivers, etc.) -- were, as a rule, under the actual domination of a Party to the conflict, such domination was exceptional for sea areas. In general, the Parties limit the exercise of their domination to certain zones, "such as the sea around island bases, or waters adjacent to defended areas of the territorial sea, or areas along some straits". (6) Outside such zones, medical aircraft, and for that matter, neutral aircraft, should be able to fly over areas without being subject to prior conditions.

    986 Article 25 uses the term ' in and over ' land areas and ' in and over ' sea areas, thus clearly showing that the obligation to respect and protect medical aircraft exists both when they are in flight and when they are grounded.

    987 In such areas respect and protection "is not dependent on any agreement with an adverse Party". Thus such an agreement is not required, as is the case in the context of Article 27 ' (Medical aircraft in areas controlled by an adverse Party) ', or considered virtually indispensable, as in the context of Article 26 ' (Medical aircraft in contact or similar zones) '. Thus the Party to the conflict which controls the medical aircraft is solely responsible for their use in such areas, even though certain precautions are recommended in the second sentence.

    [p.285] Second sentence

    988 The freedom of medical aircraft to fly in the areas defined above is not put into question by the second sentence. The use of the word "ainsi" (in this manner) in the French text is not very suitable, since the first sentence does not define the way in which such aircraft should be used. Moreover, no such word is used in the English text, and it should not be considered as any form of restriction on the use of medical aircraft in the areas mentioned, as the conditions of use are determined by Article 28 ' (Restrictions on operations of medical aircraft) '.

    989 Obviously notification provides an additional element of safety. It is rightly more forcefully recommended for medical aircraft making flying within range of surface-to-air weapons systems of the adverse Party. This point is emphasized to indicate the importance of precautions to be taken for the protection of medical transportation.

    990 Finally, though the ' decision ' to notify is left to the discretion of the Party concerned, the ' contents ' of such notification are laid down mandatorily. This is perfectly logical: as soon as a Party decides to notify the adverse Party, it should do so unambiguously to prevent any subsequent controversy (7).

    ' Y.S. '


    NOTES

    (1) [(1) p.284] 1973 Draft, Art. 26. On the other hand, this expression was retained in Arts. 54, para. 5, and 70, para. 1;

    (2) [(2) p.284] O.R. III, p. 130, CDDH/II/82/Rev.1, Art. 26;

    (3) [(3) p.284] O.R. XI, p. 504, CDDH/II/SR.45, para. 16; cf. also ibid., p. 517, CDDH/II/SR.46, para. 17;

    (4) [(4) p.284] On this subject, cf. ibid., p. 515, CDDH/II/SR.46, para. 11;

    (5) [(5) p.284] On this subject, cf. ibid., pp. 515-516, paras. 12 and 16;

    (6) [(6) p.284] Ibid., p. 504, CDDH/II/SR.45, para. 16;

    (7) [(7) p.285] In addition, cf. commentary Art. 29, infra, p. 307;