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Commentary - Restrictions on operations of medical aircraft
    [p.299] Article 28 -- Restrictions on operations of medical aircraft


    [p.300] General remarks

    1046 As one delegate remarked at the CDDH:

    "Apart from the fear that the safety of medical aircraft could not be assured against attack from distances which exceeded the range of recognition of the distinctive emblem, an important factor in limitations on the protection of medical aircraft under present law was the concern felt over the security threat posed by possible abuses of protected status." (1)

    1047 Article 28 is an attempt to deal with this last concern, and lists the various restrictions imposed on the use of medical aircraft. The restrictions mentioned in paragraphs 1-3 have a general scope of application and apply to all uses of medical aircraft; the restriction imposed by paragraph 4 applies for flights carried out in the air space corresponding to the zones and areas covered by Article 26 ' (Medical aircraft in contact or similar zones) ' and Article 27 (Medical aircraft in areas controlled by an adverse Party), but does not apply to flights carried out over the areas covered by Article 25 ' (Medical aircraft in areas not controlled by ' an adverse party).

    1048 The restrictions imposed in paragraphs 1-3 have a general character and therefore apply to aircraft:

    "even when flying over their own territory. It had been brought out in the discussion [...] that a Party might be intending to fly over its own territory, but might accidentally fly over enemy territory, through inadvertence or stress of weather". (2)

    1049 Article 29 of the 1973 draft, which corresponds to the present Article 28 , consisted of only one paragraph. It contained only the restriction included in paragraph 4, and a shorter version of that contained in the first sentence of paragraph 2 of the article.

    1050 However, this should not lead one to conclude that there was no intention to impose the other restrictions now contained in Article 28 . The construction of the entire part of the draft concerning the protection of medical transports was different, (3) and these restrictions were simply mentioned somewhere else. Article 24 of the draft, entitled ' Protection, ' applied to all medical transportation by air. Paragraph 3(a) dealt with part of the question now governed by paragraph 2 of Article 28 , and paragraph 3(b) is similar to the present paragraph 3 of Article 28 . Other provisions were contained in Articles 12 and 13 concerning medical units and the cessation of protection of medical units, respectively. The contents of paragraph 4 of Article 12 in particular were included in the present paragraph 1 [p.301] of Article 28 , while those of paragraph 2(b) of Article 13 were included at the beginning of the present paragraph 3 of Article 28 .

    1051 Therefore Committee II -- which, incidentally, followed to a large extent the conclusions of the Conference of Government Experts in 1972 (4) -- did not really modify the restrictions imposed on medical aircraft in the draft, but improved the Protocol by making it more comprehensible in this respect. Article 24, paragraph 2, of the draft, which referred back to Articles 12 and 13, subject, in the case of medical aircraft, to Articles 27, 28, 29 and 32, is a striking example of a provision that was far too difficult to understand. As one delegate stressed, as these provisions "must be observed and enforced by non-lawyers under the stress of combat, the demands of clarity suggested that they be collected in one place of the Protocol". (5)

    Paragraph 1

    ' First sentence '

    1052 The prohibition mentioned here is fundamental, and applies not only to medical aircraft, but for any person and any objects enjoying special protection. Such a rule is actually one of the pillars on which international humanitarian law is founded, and one might ask whether it is necessary to repeat it here. It flows from the definition of medical aircraft which, like all other medical transports, is only considered as such if it is "assigned exclusively to medical transportation". Thus the use of an aircraft that is supposedly a medical aircraft ' to attempt to ' acquire any military advantage would mean that the aircraft loses its status of medical aircraft, and therefore its right to protection.

    1053 The fact that this principle is nevertheless still mentioned in Article 28 is because all the other provisions of the article are concerned with its implementation. (6)

    1054 As regards the meaning of the sentence, it should be noted that there must be intent to acquire a military advantage. It is possible to conceive -- though such a situation is unlikely to occur in reality -- that an aircraft could impede military action without any deliberate intention of so doing. In such a case the aircraft would not lose its right to protection. As regards the military advantage, this may take different forms. Apart from using weapons against the adverse Party, we mention the possibility of collecting information of military importance, or that of deceiving the enemy.

    [p.302]
    ' Second sentence '

    1055 This sentence is an application of the principle contained in the first sentence. It is inspired by rules given in the Conventions prohibiting, in particular, the use of prisoners of war or persons protected by the fourth Convention "to render certain points or areas immune from military operations". (7)

    1056 It is also similar to Article 51 ' (Protection of the civilian population), ' paragraph 7, of the Protocol. (8)

    1057 for example, medical aircraft used as cover to protect non-medical military aircraft from being fired at from the ground, or deliberately placed at an airport in between such military aircraft, can no longer lay a claim to being spared; the object of this sentence is to demonstrate this point clearly.

    Paragraph 2

    ' First sentence '

    1058 This sentence mentions a form of abuse which is especially to be feared with regard to the use of medical aircraft. It is clear that any aircraft forms a particularly favourable observation post, and this is one of the reasons why medical aircraft are not allowed to fly over the territory of the adverse Party without specific permission from the latter. (9)

    1059 This sentence contains three prohibitions which should be distinguished:

    1060 ' First, ' medical aircraft must not be used to "collect [...] intelligence data". Broadly speaking, intelligence data means any information which could have an effect on the conduct of military operations: for example, signalizing the presence of military positions in a particular sector is clearly intelligence data, but so is signalizing the absence of such positions. ' To collect ' means that there is intent to acquire such data. Thus what is prohibited here is not the discovery of intelligence data as such, but setting out to do so.

    1061 ' Secondly, ' medical aircraft may not be use to "transmit" such data. Even if there is no intent to collect intelligence data, it may happen that a medical aircraft comes across such information by chance. In this case there could be a great temptation to transmit it. However, in doing so the aircraft would be betraying its function. It was important to clearly stress this point.

    1062 ' Thirdly, ' medical aircraft must not ' carry ' any equipment intended for collecting or transmitting intelligence data. This provision is not limited to "photographic equipment", as was the 1973 draft, because, as one delegate pointed out, there are today "many kinds" (10) of detection devices and it was appropriate to adopt a general wording encompassing all such equipment.

    [p.303] 1063 Whether or not it has collected or transmitted such data, an aircraft carrying equipment intended for such purposes is committing a breach. Thus such carrying is a breach in itself, and not merely indicative of a breach. Such a strict rule is logical. It may be very difficult to prove that an aircraft has actually collected or transmitted information, and if in time of armed conflict it is carrying equipment apparently intended for this purpose, it is not entitled to have the benefit of the doubt. However, the third sentence of the paragraph is meant to prevent the presence of just any equipment of suspicious appearance from being considered to be a breach of this provision. (11)

    ' Second sentence '

    1064 It could be maintained that this sentence serves no purpose, and one delegate proposed that it be deleted. (12) In fact the very definition of medical transportation which is referred to in this sentence, implies that it concerns the conveyance of "the wounded, sick, shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies protected by the Conventions and by this Protocol", and "medical transports" means any means of transportation assigned exclusively to medical transportation. Once again, however, common sense prevailed over purely legal arguments,

    "since Protocol I would not be interpreted by lawyers or airmen or by lawyers in Air Ministeries, the sponsors had thought it useful to include the second and third sentences of paragraph 2. They might be the very points that would be checked in aircraft landing on foreign territory". (13)

    Furthermore, one delegate considered that this mention revealed more clearly that the transportation of persons or of a cargo that was not permitted constituted a breach of the Protocol. (14)

    1065 It should be recalled that persons who may be transported are, on the one hand, the wounded, sick and shipwrecked (it has been shown that under some conditions aircraft may be used for rescue operations at sea); on the other hand, medical and religious personnel: i.e., personnel accompanying the wounded, sick and shipwrecked, and the crew of the aircraft, as well as medical or religious personnel who are travelling on the medical aircraft.

    1066 As regards the cargo, apart from the effects and equipment described in the following sentence, this may consist only of medical equipment and ' matériel, ' whether needed for the wounded and sick being transported, or whether they are being sent from one place to another.

    1067 A controversy arose with regard to transporting the dead, and the Rapporteur of the Drafting Committee of Committee II explained that this was not permitted. Nevertheless, he added that it was understood "that the protection of medical [p.304] aircraft did not cease if they were carrying the bodies of persons who had died during the flight". (15)

    ' Third sentence '

    1068 What is said in this provision is self-evident, and it was considered pointless by some to state it. However, as with the preceding sentence, it was wisely considered that one can never be too careful, particularly when the provisions concerned may have to be applied by people with little ability to grasp the legal subtleties involved. The mention of "equipment intended solely to facilitate navigation, communication o identification" seemed especially important "since for a soldier on the ground or for a layman it was not always obvious that such apparatus formed part of the essential equipment of an aircraft", (16) and because it could easily be confused with the equipment mentioned in the first sentence of the paragraph. It should be recognized for that matter that authorized effects and equipment could in certain cases be used for prohibited purposes. This is why it is important, in the first sentence, to distinguish prohibited acts from the equipment medical aircraft are forbidden to carry.

    Paragraph 3

    1069 The provisions laid down in this paragraph are similar to those which apply generally to medical units and transports. They correspond to Article 13 ' (Discontinuance of protection of civilian medical units), ' paragraph 2(a) and (c), which implicitly permits the two acts mentioned here, since it states that they may not be "considered as acts harmful to the enemy". Moreover, they can also be found mentioned as such in Article 22 of the first Convention, which specifies that they must not be "considered as depriving a medical unit or establishment of the protection guaranteed". As shown above, the 1973 draft also referred back, with regard to protection, to the articles concerning medical units. However, as other elements of these articles could not apply to medical aircraft, the system became too complicated. On the specific points mentioned in paragraph 3, the rules adopted for medical aircraft are the same as those governing medical units as a whole. Thus for the meaning of these provisions, we refer to the commentary on Article 13 ' (Discontinuance of protection of civilian medical units), ' paragraph 2 (a) and (c). (17)

    1070 Perhaps it should merely be added that in the case of medical aircraft the use of defensive weapons -- with all the restrictions mentioned in this respect (18) -- is conceivable only on the ground, particularly when an aircraft is forced to land or alight on water. Of course there is no question here either of forcibly opposing [p.305] the aircraft from being seized by armed forces, but of defence against possible acts of banditry or vandalism.

    Paragraph 4

    1071 In the 1973 draft, Article 22 provided the general rule that medical transport may be used to search for and evacuate the wounded, the sick and the shipwrecked. This article was considered unnecessary by Committee II, which, as one delegate stated in particular, considered that "search for the wounded was a normal medical function", and that if it were decided to mention it here, "all the other things permitted to medical personnel would have to be included"as well. (19)

    1072 Thus no one doubts that searching for the wounded is a normal medical function. Consequently, if a medical transport is to be prohibited from carrying out such a task, this should be explicitly stated. In fact, this had already been done in the above-mentioned Article 22 of the 1973 draft, which contained the general rule "subject to Article 29", the latter imposing such exceptions. The exception imposed by the present paragraph 4 therefore continues to be necessary even without the explicit mention of the rule.

    1073 Let us now examine the effect of the restriction mentioned in paragraph 4 on the use of medical aircraft.

    1074 First, the expression ' to search for the wounded ' clearly refers in this context to flights over an area with the aim of finding the wounded.

    1075 In the context of Article 25 ' (Medical aircraft in areas not controlled by an adverse Party) ' the search is freely permitted, as it is not subject to the restriction of this paragraph, and it is therefore left to the sole initiative of the Party to which the medical aircrafts belong.

    1076 In the context of Article 26 ' (Medical aircraft in contact or similar zones) ' a prior agreement with the military authorities of the adverse Party is strongly recommended before flights over contact or similar zones. In the absence of a specific mention in the agreement, search is not included: it is therefore prohibited.

    1077 However, Article 26 ' (Medical aircraft in contact or similar zones) ' does not prohibit medical aircraft from operating in such zones without an agreement, though it states that in this case they do so at their own risk. Paragraph 4 under consideration here prohibits such flights for search purposes. This is important. An aircraft which enters a zone such as defined in Article 26 ' (Medical aircraft in contact or similar zones) ' without a prior agreement, with the aim of bringing relief to the wounded previously found there, certainly takes great risks, but it does not commit a breach of the Protocol. On the other hand, anyone operating in such a zone with the aim of searching for the wounded is committing a breach. More seriously, the rule of Article 26 ' (Medical aircraft in contact or similar zones), ' which provides that medical aircraft flying in such a zone must be respected as [p.306] soon as they are recognized, no longer applies to aircraft which are visibly engaged in a search mission. In practice it is of course advisable to spare such medical aircraft as far as possible, particularly as it is often not very easy to determine whether an aircraft is actually engaged in a search mission. However, the rule is strictly laid down for reasons of security, for there is a danger that such a search mission could be abused as a pretext for spying on enemy positions.

    1078 Finally, in the context of Article 27 (Medical aircraft in areas controlled by an adverse Party), any flight over areas physically controlled by the adverse Party can only be lawfully carried out with the agreement of the latter. If such an agreement does not specify that a search mission may be carried out during a permitted flight, such a mission is prohibited.

    1079 If a medical aircraft carrying out a search mission in areas defined by Article 25 ' (Medical aircraft in areas not controlled by an adverse party) ' enters an area under the control of the adverse Party as the result of a navigational error, it should obviously stop searching immediately upon realizing its mistake, make an attempt to get itself identified by the adverse Party, and act in accordance with any instructions that might be given by the latter.

    1080 Thus, for obvious reasons of security the Protocol is rather strict as regards the missions which might be undertaken by medical aircraft to search for the wounded in areas outside those under the control of the Party to which the aircraft belongs. In fact, this problem arises mainly in contact or similar zones, as wounded persons requiring relief are most numerous there, and no search mission by aircraft is permitted without the agreement of the two Parties to the conflict. This is why in this case it is proper to insist on the obligation of the Parties to do all they can to reach such agreements. In this respect it is appropriate to recall in particular Article 15 , paragraph 2, of the first Convention, which does not allow for any doubt in this respect:

    "Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield."

    ' Y.S. '


    NOTES

    (1) [(1) p.300] O.R. XI, p.506, CDDH/II/SR.45, para.22;

    (2) [(2) p.300] Ibid., p. 532, CDDH/II/SR.47, para. 42;

    (3) [(3) p.300] On this subject, cf. introduction to Section II of Part II, supra, p. 245;

    (4) [(4) p.301] Cf. ' CE 1972, Report ', Vol. I, p. 45, paras. 1.77-1.79, and draft Article 24 of the Committee;

    (5) [(5) p.301] Cf. O.R. XI, p. 507, CDDH/II/SR.45, para. 25;

    (6) [(6) p.301] In this sense, cf. O.R. XI, p. 532, CDDH/II/SR.47, para. 42;

    (7) [(7) p.302] Cf. Art. 23, para. 1, Third Convention; Art. 28, Fourth Convention;

    (8) [(8) p.302] On this subject, cf. commentary Art. 51, para. 7, infra, p. 627; cf. also Art. 58;

    (9) [(9) p.302] Cf. commentary Art. 27, supra, pp. 294-295;

    (10) [(10) p.302] Cf. O.R. XI, p. 532, CDDH/II/SR.47, para. 42;

    (11) [(11) p.303] Cf. infra, p. 304;

    (12) [(12) p.303] O.R. XI p. 532, CDDH/II/SR.47, para. 43;

    (13) [(13) p.303] Ibid., p. 533, para. 47;

    (14) [(14) p.303] Ibid;

    (15) [(15) p.304] Ibid., p. 594, CDDH/II/SR.52, para. 34;

    (16) [(16) p.304] Ibid., p. 533, CDDH/II/SR.47, para. 44;

    (17) [(17) p.304] Supra, pp. 177-180;

    (18) [(18) p.304] Cf. supra, pp. 177-178;

    (19) [(19) p.305] O.R. XI, p. 401, CDDH/II/SR.37, para. 40;