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Commentary - Notifications and agreements concerning medical aircraft
    [p.307] Article 29 -- Notifications and agreements concerning medical aircraft


    [p.308] General remarks

    1081 This article lays down the way in which notifications and agreements concerning medical aircraft should be made. The 1973 draft was very brief, and Committee II developed it considerably. For the sake of the safety of aircraft operating in accordance with such notifications and agreements, it was essential that such matters were made perfectly clear.

    Paragraph 1

    1082 Notifications under Article 25 ' (Medical aircraft in areas not controlled by an adverse Party) ' are optional and are especially recommended in certain cases. Requests for prior agreements are very strongly recommended for flights referred to in Article 26 ' (Medical aircraft in contact or similar zones); ' they are required for flights referred to in Article 27 ' (Medical aircraft in areas controlled by an adverse Party) '; and also required for flights undertaken to search for the wounded, (1) whether they are covered by Article 26 (Medical aircraft in contact or similar zones) ' or by Article 27 ' (Medical aircraft in areas controlled by an adverse Party). ' Finally they are also required for flights over the territory of a State not Party to the conflict, and for landing or alighting on water in such territory. (2)

    1083 However, whether they be optional, recommended in various degrees or obligatory, such notifications or requests for agreement ' must, ' once they are made, contain a number of elements which are listed in paragraph 1. Such an obligation regarding the content of a notification or a request for agreement is logical. Whenever a notification -- even if this is of an optional character -- is made to the adverse Party, the latter incurs a greater responsibility in case of blunders, since it had been warned. However, it would be wrong and could result in dangerously worsening relations to make accusations based on notifications that had not been sufficiently precise. This is why there is an ' obligation ' to include the elements that are listed ' even for optional notifications '.

    [p.309] 1084 There are three such elements. The information that must be given is: the "proposed number of medical aircraft", their "flight plans" (i.e., as precisely as possible their departure and arrival times, their flight path and altitude) which should be as far as possible formulated in accordance with the procedures laid down by the International Civil Aviation Organization (3) and their "means of identification" (i.e., the distinctive emblem and signals with which they are equipped). (4)

    1085 These three points ' must ' be included in all notifications or requests for agreement although, as indicated in the commentary on Article 30 of the draft, this list is not exhaustive; the Parties sending the notification or the request for agreement may add other elements.

    1086 In addition, according to the second part of paragraph 1, such notifications or requests for agreement "shall be understood to mean that every flight will be carried out in compliance with Article 28 ".

    1087 In fact, any use of medical aircraft must be in accordance with the provisions of Article 28 ' (Restrictions on operations of medical aircraft). ' However, as information is communicated in the cases covered by Article 29 , it seemed better to Committee II to clearly state that Article 28 ' (Restrictions on operations of medical aircraft) ' would apply regardless of whether those provisions were mentioned explicitly in the notification or the request for agreement. For example, if there is no mention in a notification or a request for agreement on transport of weapons, that does not mean that one is allowed to act contrary to Article 28 ' (Restrictions on the operations of medical aircraft), ' paragraph 3. This is self-evident, but the Committee nevertheless considered that it would be useful to emphasize the point. It could even be considered that this provision goes somewhat further: in making a notification or a request for an agreement, a Party to the conflict implicitly indicates that it is perfectly aware of the restrictions laid down in Article 28 ' (Restrictions on operations of medical aircraft), ' and that it will comply with them.

    Paragraph 2

    1088 As we have seen, the notification made pursuant to Article 25 ' (Medical aircraft in areas not controlled by an adverse Party) ' is optional. On the other hand, the acknowledgement of receipt of such notification is justifiably compulsory. Indeed, a notification made in accordance with this article does not entail any additional obligation for the Party receiving it -- thus it cannot refuse it -- but helps it to observe the obligation to respect medical aircraft used outside areas under its physical control, an obligation which falls upon it anyway, independently of any notification. Furthermore, the notification is an additional guarantee for the Party making it that its medical aircraft will not be hit by the adverse Party by mistake. However, in order that such aircraft can really fly with an enhanced [p.310] sense of security, the pilots must know that the notification has been properly received. Thus there is a good reason for the Party receiving the notification to acknowledge receipt and no valid reason for refusing. This is why there is an obligation. Moreover, the acknowledgement of receipt should take place "at once", i.e., as soon as that Party has become aware of the notification. The channels used for such acknowledgement, as for the notification itself, can be either direct, if such direct channels exist, or indirect, if there are none. In this case the Protecting Powers, their substitute or the ICRC could notably serve as a channel of communication.

    Paragraph 3

    1089 In the situations covered here there is a request for agreement which, if accepted by the adverse Party, would modify the obligations of the latter. Thus it is logical that the procedure is more complicated. In the case of Articles 26 ' (Medical aircraft in contact or similar zones), ' 27 ' (Medical aircraft in areas controlled by an adverse Party) ' or 31 ' (Neutral or other States not parties to the conflict), ' the adverse Party is requested (Articles 26 -- ' Medical aircraft in contact or similar zones ', and 27 -- ' Medical aircraft in areas controlled by an adverse Party) ', or a State not Party to the conflict is requested (Article 31 -- ' Neutral or other States not Parties to the conflict) ' to agree to the use, by the Party making the request, of a determined number of medical aircraft equipped with clearly defined means of identification and flying in accordance with an indicated flight plan over areas where such aircraft without an agreement either cannot be used, except at their own risk (Article 26 -- ' Medical aircraft in contact or similar zones') or do not have any right to be used (Articles 27 -- ' Medical aircraft in areas controlled by an adverse Party ' and 31 -- ' Neutral or other States not parties to the conflict). ' In both cases, if the adverse Party or the State not Party to the conflict agrees to the request, it thereby accepts the responsibility for ensuring that its own forces will not endanger aircraft flying in accordance with the agreement.

    1090 The reply of the Party receiving the request must be sent "as rapidly as possible", and no longer "at once". In fact, although paragraph 2 is simply concerned with acknowledging receipt of information received, the reply to be sent under paragraph 3 may require consultations, and therefore involve a short delay.

    1091 Four types of reply are possible:

    - Unconditional acceptance of the request, permitting the entry into force of the agreement as soon as the requesting Party receives the acceptance (the latter could still acknowledge receipt of such a positive response for the sake of security).
    - Denial of the request, which should in principle be explained, at any rate when coming from the adverse Party. In fact, it should not be forgotten that Article 15 of the first Convention in particular requests Parties to the conflict at all times to "without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care". A denial of the request, even if it does not contain alternative proposals, should explain the reasons for denial to the requesting [p.311] Party, and as far as possible, include indications to help such a Party formulate a request which has a chance of being accepted.
    - "Reasonable alternative proposals to the request". (5) for example, this could refer to a change in flight plan, or in the number of aircraft permitted to carry out the tasks or any other proposal which makes good sense. An alternative proposal should be made in a positive spirit with the real intention of coming to an agreement. It must not be a delaying tactic or a suggestion which is obviously not going to have any chance of being accepted.
    - Finally, an additional condition may be proposed either on its own or together with a proposal for an alternative agreement, viz., a "prohibition or restriction of other flights in the area during the time involved". One delegate expressed his doubts about this possibility, which "could make those flights conditional upon the prohibition or restriction of all non-medical flights of the adverse Party in the area concerned". He feared that such a condition might be "drawn up in such a way that the humanitarian aim of the medical flight might be endangered". (6) However, this point of view did not prevail. As one delegate stated, the Committee considered that, to prevent any form of abuse in this respect, it was reasonable that the Party to whom the request is addressed, should require the requesting Party to stop all non-medical operational flights "while its own automatic defence equipment was switched off to permit the medical flight". (7)

    1092 If the Party which has submitted the request accepts the alternative proposals -- i.e., to modify the agreement, restrict or prohibit other flights during the time concerned, or a combination of these two possibilities -- "it shall notify the other Party of such acceptance". Indeed such notification is essential, since there are new proposals. For the sake of greater security the Party which has received the notification should acknowledge receipt before the agreement is put into operation, even though this is not laid down in Article 29 and is therefore not essential.

    1093 No provision has been made in the case that the alternative proposals are not acceptable to the Party which made the first request. In principle, such "toing and froing" between the Parties to the conflict should not be too drawn out. However, there is nothing to prevent this Party from addressing a new request, in which case the procedure laid down in paragraph 3 applies again ab initio.

    Paragraph 4

    1094 The wounded cannot be kept waiting for relief. It is therefore essential that agreements which may be concluded to this end should be made rapidly, as otherwise they generally lose a great deal of their purpose. This is the reason for paragraph 4, which imposes upon the Parties (i.e., the Parties to the conflict, but [p.312] also States not Parties within the meaning of Article 31 -- ' Neutral or other States not Parties to the conflict) ' the obligation to take the "necessary measures" to ensure that such notifications can be made and agreements can be "rapidly concluded. The first step is to ensure that a rapid communication channel is permanently open between the Parties to the conflict, whether it is direct or indirect. (8) However, the Parties must also ensure that requests for agreement are examined without delay by the competent authorities so that a reply and, if necessary alternative proposals, can be rapidly communicated. In this context the word "rapidly" cannot be given a ' precise ' definition. The speed which can be expected from a Party depends on the circumstances and the technical means available to it. However, as a general rule, this space of time should be only a matter of hours.

    1095 As regards acknowledgement of the receipt of a notification, this should be sent "at once", as mentioned above.

    Paragraph 5

    1096 The fact that medical aircraft should not be shot down is part of the instruction that should be acquired in the context of a general and long-term dissemination programme; (9) the obligation to refrain from firing at any unidentified aircraft flying over one's own territory, in a combat zone or over enemy territory but within range of one's own surface-to-air weapons systems, is not a general obligation of international humanitarian law. Such an obligation can only be based on specific agreements which should give rise to precise instructions related to the cases in point. This is why it is particularly important to inform all ' those who could, through ignorance, act contrary to the notifications and agreements ' concerned here. The expression "the militar units concerned" should be interpreted in this sense being understood that it is the responsibility of the Parties to ensure that the information is passed by unit commanders to all persons -- airmen, artillery gunners or others -- who are in a position to put aircraft flying in accordance with the notifications or agreements in jeopardy.

    1097 Moreover, it is specified that such units must be instructed "regarding the means of identification that will be used by the medical aircraft in question". The French text further specifies that they must be so instructed "rapidly" ' (rapidement). ' This point might seem superfluous at first sight, since the notifications and agreements concerned ' must ' include the means of identification. (10) Nevertheless, it is not merely a matter of communicating the means of identification to the military units concerned, but of instructing them, i.e., clearly explaining how such aircraft can be identified (by distinctive emblem and signals). (11)

    1098 It is clear that such dissemination has a ' particularly urgent ' character. At any rate the word "rapidly" used in theFrench version of paragraph 5 is not [p.313] sufficiently precise in this context. For it to be meaningful, the ' dissemination ' prescribed in paragraph 5 must take place before the start of flights carried out in accordance with the notification or agreement in question. Thus the speed required here depends on the times at which such flights are scheduled.

    1099 As regards the timing of such information, the Parties are requested to inform persons who are in a position to put the aircraft concerned in jeopardy, before they have to take any decision relating to them.

    ' Y. S. '


    NOTES

    (1) [(1) p.308] Cf. Art. 28, para. 4;

    (2) [(2) p.308] Cf. Art. 31, para. 1;

    (3) [(3) p.309] Cf. commentary Annex I, Art. 12, infra, p. 1273;

    (4) [(4) p.309] Cf. commentary Art. 18, supra, p. 221, and commentary Annex I, Chapters I-III, infra, p. 1151;

    (5) [(5) p.311] On the meaning of the word "reasonable" as used in this context, cf. commentary Art. 27, para. 2, supra, pp. 297-298;

    (6) [(6) p.311] O.R. XI p. 535, CDDH/II /SR.47, para. 55;

    (7) [(7) p.311] Ibid., para. 57;

    (8) [(8) p.312] On this subject, cf. commentary para. 2, supra, p. 310;

    (9) [(9) p.312] Cf. Art. 83 and its commentary, infra, p. 959;

    (10) [(10) p.312] Cf. commentary para. 1, supra, pp. 308-309;

    (11) [(11) p.312] Cf. commentary Annex I, Chapters II-III, infra, p. 1167;