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Commentary - Medical aircraft in areas controlled by an adverse Party
    [p.293] Article 27 -- Medical aircraft in areas controlled by an adverse Party


    [p.294] 1018 Article 27 is the last of three articles which lay down general rules for the use of medical aircraft, depending on the area (zone) where they are used.

    1019 The reason why Article 26 ' (Medical aircraft in contact or similar zones) ' closed the door halfway to the use of medical aircraft without prior agreement in "contact or similar zones" is primarily to ensure the safety of such aircraft. The fact that now the door is even more firmly closed to flight without prior agreement over areas "physically controlled by an adverse Party", is basically because the safety of that Party could also be seriously jeopardized by such overflight.

    Paragraph 1

    1020 The rule laid down in this paragraph takes up, though in a more positive vein, the provision of Article 36 , paragraph 3, of the First Convention, which reads as follows: "Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited". This should be interpreted as reflecting a different attitude with regard to such flights. Some had even wished to allow overflight without agreement, merely subject to notification. (1) It is true that the obligation to obtain the agreement of the adverse Party has been retained, but the positive formulation of the sentence indicates that that Party should in principle give its agreement and may refuse to do so only for imperative reasons, particularly security reasons.

    1021 Medical aircraft will only fly through the air space of the adverse Party and will not land on its territory, except in the case of technical difficulties, or if they are ordered to do so. Thus paragraph 1 concerns only overflight and an agreement relates only to this.

    1022 The concept of "land or sea areas physically controlled by an adverse Party" was examined above. (2)

    1023 Agreement should be given by the "competent authority of the adverse Party". This wording was deliberately left vague. As one delegate remarked, it is possible

    "that flight over enemy territory would be over broader areas than were represented by the contact zone, and in the enemy's rear. As a general rule, however, overflight of enemy territory was more likely to take place over combat areas and that was therefore when it was necessary to reach an agreement with the adverse Party. There must, for instance, be provision for the case of an air head or a besieged area from which the wounded had to be evacuated by air over relatively short distances, strictly within the area controlled by the combat commander; in that case it was clearly not the national or political authority which would have to give clearance, but the military commander."

    [p.295] That delegate therefore considered, as did the Committee as a whole, that it was better not to identify the authority which had to agree: "that was for each State to determine". (3)

    1024 The request for an agreement and the response to such a request may be made by any means of communication. The help of Protecting Powers, their substitute or the ICRC may be requested, if this should be necessary. The contents of the request for an agreement, and the obligations of the Party receiving such a request, are laid down in Article 29 ' (Notifications and agreements concerning medical aircraft). '(4)

    Paragraph 2

    1025 The purpose of this paragraph is to prevent a tragic accident i.e., the shooting down of a medical aircraft, while taking into account the legitimate fears of the Parties to the conflict with regard to their security. If a Party to the conflict happened to shoot down a medical aircraft, this would certainly not be intentional in the majority of cases, but because it had been led to believe that the characteristics of the aircraft were deceptive, and that it was actually an aircraft on an espionage mission or even an aircraft carrying bombs.

    ' First sentence '

    1026 The first sentence indicates the problem and outlines the obligations incumbent upon medical aircraft.

    1027 As shown above, medical aircraft may not fly over "areas physically controlled by the adverse Party" (5) unless they have the agreement of that Party. This paragraph provides for the case where medical aircraft fly over such areas "without, or in deviation from the terms of, an agreement provided for in paragraph 1". In fact, the agreement must contain in particular a flight plan, (6) and a medical aircraft which did not comply with this would not be flying without an agreement, but in deviation of the terms of an agreement.

    1028 However, this paragraph does not provide for the case of a ' deliberately ' planned overflight without, or in deviation from the terms of, an agreement. There must be a navigational error or an emergency affecting the safety of the flight. As one delegate stated:

    "An aircraft was at the mercy of the law of gravity. If something went wrong, the pilot could not stop; he had to go on, possibly in a direction which he had not intended. There was also the phenomenon of the jet-stream over oceans, which could force a pilot to fly at a speed lower by 200 miles an hour than he had expected, with the resultant effect on fuel consumption and the pilot's [p.296] ability to reach his planned destination. Sometimes also a pilot was forced to make extensive detours in order to allow for unexpected weather." (7)

    Finally, the instruments may be faulty and the pilot may lose his way. In all these cases the medical aircraft may find itself in the air space of a Party to the conflict without any agreement giving it the right to be there, or if there is an agreement, at another time or place than arranged.

    1029 One delegate stated that such situations were not provided for by the Geneva Conventions and that such cases were therefore in violation of the Conventions, regardless of their cause. Consequently he considered that the article of the Protocol modified the Conventions, and that it was necessary to say so. (8) We have already expressed our own view that the articles on medical aircraft do indeed modify the régime of the Conventions. (9) However, in this particular case it certainly seems that the recognized legal concepts of ' necessity ' (in the case of an intentional overflight justified by technical reasons), ' error ' (in the case of non-intentional overflight), or more generally, ' force majeure ' preventing compliance with an obligation, can be invoked even under the régime of the Conventions.

    1030 As regards the Protocol, this provides that in such cases the aircraft must "make every effort to identify itself and to inform the adverse Party of the circumstances". As soon as they realize they are flying over territory of the adverse Party without the right to do so (which is not always the case), the crew must do all they can, as soon as possible, to ensure that the medical aircraft be identified and recognized as such by the adverse Party. This is perfectly logical, as the aircraft is in the gravest danger at this point: in the context of armed conflict a Party to the conflict could certainly not remain passive for very long in the face of the risk to its security presented by an unidentified aircraft flying over its territory. Thus the crew of the aircraft must use every means at their disposal to communicate with the adverse Party so that they can be identified. (10)

    1031 Although not explicitly stated in the text, it is clear that, to the extent that there is an error which can be corrected, the aircraft will endeavour to leave the air space of the adverse Party, whilst at the same time making every effort to be identified. However, it will do so obviously only as long as it has not received any order to the contrary from the adverse Party. (11)

    ' Second sentence '

    1032 This sentence deals with the obligations incumbent in such a situation on the Party to the conflict over whose territory the aircraft is flying.

    1033 It is admitted that as a final solution, that Party can resort ' to an attack against the aircraft. ' This is a perfect example of what international humanitarian law [p.297] often comes down to: a balance between diverging interests, even though this seems shocking at first. Everything that is possible must be done to prevent an attack on a medical aircraft, but as a last resort, such an act cannot be prohibited, for, as one delegate stressed, "the fact that a single aircraft could wipe out an entire city", cannot be ignored. (12) Moreover, as another delegate stated, "the word "attack" did not mean "to shoot down"", (13) even though the possibility that such an aircraft might be shot down remains if all other methods -- particularly warning shots -- have been ineffective. This cannot be denied, for the reasons given above.

    1034 However, the second sentence of the paragraph is aimed at preventing this final solution. Before resorting to an attack, the adverse Party:

    "shall make all reasonable efforts to give the order to land or to alight on water, referred to in Article 30 , paragraph 1, or to take other measures to safeguard its own interests, and, in either case, to allow the aircraft time for compliance".

    The significance of this admittedly rather ponderous wording is studied in detail below.

    1035 The expression "make all reasonable efforts" resulted in controversy right up to the final plenary meetings. For example, it was claimed that "the adjective "reasonable" was borrowed from the Anglo-Saxon system" and that the expression was "not very clear". (14) Even though the expression does not have a very precise legal meaning in this context, at any rate not in French, there is little doubt concerning the intent behind the words: the efforts required are those dictated by common sense. No one is obliged to do the impossible, and a Party to the conflict cannot be required to take suicidal risks. Thus it is asked to do all it can to avoid attacking the aircraft, taking into account its security requirements. This is above all a matter of common sense.

    1036 Such efforts may first be concerned with ordering the aircraft to land, or if it is a hydroplane, to alight on water. This situation and its consequences are dealt with in detail in Article 30 ' (Landing and inspection of medical aircraft). ' (15)

    1037 Such efforts may also involve taking "other measures". In fact, there are several possible alternative measures that could be employed, such as obliging the aircraft to take another route and "sending another aircraft to order the medical aircraft to follow it". (16) There was no reason to give a limitative enumeration in this respect, and Parties to the conflict are free to adopt such measures as they consider to be adequate.

    1038 The object of such measures is specified. It is to ' safeguard the interests ' of the Party taking them. Thus they should not be measures of intimidation or of mere harassment, unrelated to the interests of that Party, which in this context are basically, if not exclusively concerned with its security.

    [p.298] 1039 Whether that Party to the conflict orders the aircraft to land or to alight on water, it must also "make all reasonable efforts [...] to allow the aircraft time for compliance". This is more or less self-evident. It is obvious that nothing is gained by ordering a medical aircraft to land, if it is then shot down before it has the time to carry out this order.

    1040 In fact, the intention is that the medical aircraft must be given every possible opportunity to show its good will. If a medical aircraft in a situation as described in this paragraph manifestly does not comply with the order, although it has understood it, the Party to the conflict in whose air space it is flying has good reason to think ' that it is not actually a medical aircraft, ' i. e., an aircraft exclusively assigned to medical transportation, and it will take the action required for the preservation of its own security.

    1041 The problem remains of ' medical aircraft deliberately entering the air space of an adverse Party '. It could happen that the crew of a medical aircraft deliberately choose to enter prohibited air space and this choice is not caused by technical or weather conditions but, for example, because this course would shorten the duration of transporting the wounded in urgent need of care. For reasons of security, the CDDH did not tolerate such overflight, which would therefore constitute a breach of the Protocol.

    1042 However, in the first instance, the reaction of a Party to the conflict over whose territory an aircraft is flying for such a reason should be the same as the reaction that it should have with regard to a medical aircraft which had entered its air space by mistake, or for technical difficulties, for the simple reason that it cannot distinguish one from the other.

    1043 Thus, in the event, the Party to the conflict concerned will apply the second sentence of paragraph 2 with respect to such aircraft.

    1044 It would be later, when the aircraft had been brought down to land, and its crew had therefore fallen into the hands of that Party, that the situation of the crew would be different.

    1045 If they have committed a breach of the Protocol, they could be punished in accordance with the gravity of the breach. However, it should be noted that this could vary considerably: the case in which a pilot errs in taking the risk of entering prohibited air space for purely humanitarian reasons, such as that mentioned above, of shortening the journey of seriously wounded persons, has nothing in common with the case of a pilot who has misused the red cross or red crescent emblem for the purpose of committing a hostile act.

    ' Y. S. '


    NOTES

    (1) [(1) p.294] Cf. CE 1972, Report, Vol. I, p. 47;

    (2) [(2) p.294] Cf. commentary Art. 25, supra, p. 284;

    (3) [(3) p.295] O.R. XI, p. 528, CDDH/II/SR.47, para. 20;

    (4) [(4) p.295] Cf. commentary Art. 29, infra, p. 307;

    (5) [(5) p.295] A concept which was discussed above, cf. commentary Art. 25, supra, p. 284;

    (6) [(6) p.295] Cf. Art. 29, para. 1;

    (7) [(7) p.296] O.R. XI, pp. 527-528, CDDH/II/SR.47, para. 16;

    (8) [(8) p.296] Cf. ibid., p. 559, para. 36;

    (9) [(9) p.296] Cf. commentary Art. 24, supra, pp. 280-281;

    (10) [(10) p.296] On this subject, cf. Annex I (particularly Arts. 5-13) and the commentary there on, infra, p. 1137;

    (11) [(11) p.296] Cf. the commentary on the second sentence, infra;

    (12) [(12) p.297] (12) O.R. XII, p. 33, CDDH/II/SR.58, para. 19;

    (13) [(13) p.297] Ibid., p. 35, para. 34;

    (14) [(14) p.297] O.R. VI, p. 95, CDDH/SR.39, paras. 12 and 15;

    (15) [(15) p.297] On the subject of which, cf. infra, p. 315;

    (16) [(16) p.297] O.R. XI p. 592 CDDH/II/SR.52, para. 24;