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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary -
Optional Use
[p.1199] Annex I, Article 5
-- Optional use
[p.1200] General remarks
4132 The optional use of the distinctive signals described in Articles 6
' (Light signal), ' 7
' (Radio signal) ' and 8
' (Electronic
identification) ' of Annex I is established in paragraph 5 of Article
18
' (Identification) ' of the Protocol, according to which the
Parties to the conflict may authorize the use of such signals, while
remaining equally free not to grant such authorization. (1)
furthermore, neither paragraph 5 of Article 18
' (Identification) '
of the Protocol nor the present Article 5 calls for reciprocity in
the use of distinctive signals. However, paragraphs 1 and 2 of
Article 18
' (Identification) ' referred to above calls upon the
Parties to the conflict to endeavour to ensure that medical units and
transports are identifiable by means of the distinctive emblem and
distinctive signals.
4133 Several hypothetical situations are to be envisaged for the use of the distinctive signals, depending on military requirements, the
equipment available to the adversary and other factors:
1) The use of distinctive signals is authorized by all the Parties to the conflict. Such authorization may be based on the
availability to all the Parties of compatible means of
identification for the use of radiocommunications, radar and the
flashing blue light. Furthermore, the desire to apply the
provisions of the Protocol and the Conventions contributes to the
protection of medical units and transports and is therefore a
decisive factor.
2) None of the Parties to the conflict authorizes the distinctive signals. Such prohibition may be permanent, temporary, general or
confined to a specific region. It will probably be based on
military necessity. A permanent or temporary absence or shortage
of certain items of radio, radar or light equipment may be one of
the reasons for the prohibition; there may be other reasons too.
3) Distinctive signals are authorized by one of the Parties to the conflict whereas the other Party, while recognizing and accepting
that fact, decides not to use them itself. The difference in
approach may be a question of tactics or expediency.
4) Distinctive signals are authorized by one of the Parties but are not accepted by the other Party as it cannot use or intercept
them. There may be different reasons for such opposition, for
instance, one of the Parties may not have compatible equipment
for receiving or sending distinctive signals.
4134 These four hypotheses concerning the optional use of distinctive signals apply to civilian or military, permanent of temporary medical
units and transports entitled to use the distinctive emblem and
signals. The principal means of transport concerned are medical
aircraft, in particular medical helicopters, as well as hospital
ships and land-based rescue craft.
[p.1201] 4135 Both the Conventions and the Protocol make provision for the notification of flights by medical aircraft, (2) the use of
distinctive signals must be communicated to the adversary at the very
latest when such notification is made. Nevertheless, it is highly
recommendable that the intention to use such signals be communicated
as early as possible to the adverse Party, which should acknowledge
such communication and confirm its own intentions with regard to
their use. Chapter IV ' (Communications) ' of the Regulations
concerning identification meets communication requirements regarding
implementation of the provisions relating to the notification of
flights by medical aircraft.
4136 The same holds good for the use of distinctive signals by hospital ships and rescue craft. Over and above the related
provisions of Articles 6
' (Light signal) ' and 8
' (Electronic
identification) ' of Annex I, the eighth paragraph of Article 43
of
the Second Convention authorizes such ships and craft, subject to
agreement between the Parties, to use the most modern methods
available to facilitate their identification. Such agreements should
be concluded at the time of notification under Articles 22
and 27
of
the Second Convention.
4137 The use of distinctive signals should also be notified to neutral or other States not Parties to the conflict (3) whose territory might
be overflown by medical aircraft, in accordance with Article 31
' (Neutral or other States not Parties to the conflict) ' of the
Protocol.
4138 All the above comments apply also to medical helicopters based on board hospital ships, notifications of their flights being
transmitted by the latter.
4139 The Parties to the conflict may delegate their power to athorize the use of distinctive signals -- flashing blue light, radio, radar
-- to commanding officers on land or at sea, so that these signals
may be used by the officers concerned and their personnel to identify
medical aircraft, including helicopters, as well as hospital ships
and rescue craft. Accordingly, commanding officers should have the
means of instructing military personnel affected by distinctive
signals and the safety of medical units and transports in the various
hypotheses contemplated, so that medical transports enjoy respect and
protection in all cases, as required by the Conventions and the
Protocol. To this end, Chapter IV ' (Communications) ' of Annex I
contains provisions regarding the communications of medical units and
transports -- use of international codes, other means of
communication, flight plans -- which may be particularly valuable in
cases where there has not been unanimous consent with regard to the
use of distinctive signals.
Paragraph 1
4140 The rule in this paragraph which states that, subject to the provisions of Article 6
' (Light signal), ' paragraph 3, of Annex I,
the distinctive signals are for exclusive [p.1202] use by medical
units and transports, is also set out in Article 18
' (Identification), ' paragraph 6, of the Protocol. (4)
4141 Since the distinctive signals are means of identification which supplement the visual distinctive emblem, like the latter they are
set aside for the exclusive use of medical units and transports.
Under Article 38
' (Recognized emblems) ' of the Protocol, it is
prohibited to make improper use of the distinctive emblem or of
distinctive signals.
4142 It seems unlikely that improper use would be made of the distinctive signals, for they make it easier to locate and follow the
movements of the transports by which they are used.
Radiocommunications enable contact to be established with transports
transmitting distinctive signals; Article 11
' (Other means of
communication) ' of Annex I makes provision for other means of
communication and Article 13
' (Signals and procedures for the
interception of medical aircraft) ' sets out the procedure to be
followed for intercepting medical aircraft. By removing all incentive
to use the distinctive signals improperly, these measures should be
conducive to ensuring that they are used exclusively by medical units
and transports.
4143 The exception constituted by Article 6
' (Light signal) ' of Annex I relates only to the use of the flashing blue light. This
provision takes into account the widespread use of this light signal
as a priority road traffic signal which existed before the adoption
of the Protocol, in particular as a means of securing right of way
for civilian or military ambulances in peacetime. This point will be
further discussed in the commentary on Article 6
' (Light signal) '
of Annex I.
4144 In making the use of distinctive signals optional, account has been taken of the related material requirements, such as the
availability of the technical equipment and skilled operators
required for radio and radar systems as well as for the electrical
installation of the flashing blue light. The Parties to the conflict
may not possess the required material resources or skilled personnel
and may therefore be in one of the hypothetical situations described
above under the heading "General remarks".
4145 It was in order to cater for such situations that the "standards, practices and procedures" recommended for the signalling and
identification of medical aircraft in the report of the Technical
Sub-Commission of the 1972 Conference of Government Experts take the
form of recommendations rather than compulsory rules. (5)
Paragraph 2
4146 Temporary medical aircraft are defined in sub-paragraphs (g), (j) and (k) of Article 8
' (Terminology) ' of the Protocol. (6) Generally
speaking, the number of permanent medical aircraft in the armed
forces is very small, sinc they can be [p.1203] used for no other
purpose and would therefore be grounded for much of the time. When
the need arises, therefore, armed or unarmed fighter helicopters may
be used to evacuate the wounded, who may also be transported in
non-medical aircraft from first-aid centres to hospitals in the
rear. (7) Thus, certain military aircraft used to transport military
equipment or parachutists are also fitted out to receive stretchers
and to transport wounded in the seated or supine position.
4147 Such aircraft are entitled to the protection afforded to medical transports and may therefore display the distinctive emblem and use
distinctive signals for the duration of such transport when they
transport only wounded and carry no arms other than those allowed
under Article 28
' (Restrictions on operations of medical
aircraft) ', paragraph 3, of the Protocol.
4148 Both supplies -- paint or self-adhesive materials -- and time are required to mark a helicopter or other aircraft with the distinctive
emblem. (8) Some of the members of the Technical Sub-Committee
considered that it would be simpler and quicker to replace the red
covers of the aircraft's anti-collision lights with blue covers, thus
fitting temporary medical aircraft with the distinctive light signal.
In the view of these experts, the flashing blue light would entitle
the aircraft to use the other distinctive signals, namely, the radar
identification code and the radio signal. (9) We shall revert to this
matter under Articles 6
to 8 of Annex I.
4149 Paragraph 5 of Article 18
' (Identification) ' of the Protocol contains the same rule as the paragraph now under consideration,
which authorizes temporary medical aircraft to use only the
distinctive signals if, either for lack of time or because of the
condition of their fuselage or wing areas, they cannot be marked with
the distinctive emblem. There seems to be no reason why the aircraft
could not be at least rapidly marked with the emblem, using red and
white chalk covered, if necessary, with a waterproof transparent
spray, while the anti-collision light covers are being changed or the
radar identification code displayed. Red and white spray paint would
also make for rapid marking but would be difficult to remove once the
temporary medical aircraft had completed its humanitarian mission.
4150 The easiest and quickest distinctive signal for a temporary medical aircraft to use is without doubt the radar identification
code, in so far as such a code has been allocated to the aeronautical
region affected by the conflict; this will probably have been done if
permanent medical aircraft are operating in the region concerned.
This issue is discussed in the commentary on Article 8
' (Electronic
identification) '. In addition to the display of a radar
identification code, the use of radiocommunications by temporary
medical aircraft in accordance with Article 7
' (Radio signal) ' of
Annex I does not in principle require any special equipment, since
all aircraft carrying radio equipment can use one or other of the
urgency" frequencies contemplated in Section II (Medical Transports)
of Article 40 of the ITU Radio Regulations. That section was added to
the Regulations as a result of Resolution 19 addressed by the
Diplomatic Conference to the ITU.
[p.1204] 4151 Medical aircraft are most effectively marked by means of a visual signal within the meaning of this paragraph. However, modern air
warfare or anti-aircraft defence methods enable a fighter plane to
open fire on another aircraft long before such signs can be
distinguished.
4152 Accordingly, the practical aspects of using distinctive signals should be studied in advance and the necessary arrangements made in
good time, so that all these signals may be brought into use promptly
in the event of recourse to temporary medical aircraft.
' Ph. E. '
NOTES (1) [(1) p.1200] Cf. commentary Art. 18 of the Protocol, supra, p. 221;
(2) [(2) p.1201] Cf. commentary Arts. 25, 26, 27 and 29 of the Protocol, supra, respectively p. 283, p. 287, p. 293 and p. 307; First Convention, Art. 36, first para.; Second Convention, Art. 39, first para.; introduction to Chapter
IV, infra, p. 1257;
(3) [(3) p.1201] Hereinafter "neutral States"; on the expression "neutral or other States not Parties to the
conflict" cf. commentary Art. 2, sub-para. (c), of the
Protocol, supra, p. 61;
(4) [(4) p.1202] Cf. commentary Art. 18 of the Protocol, supra, p. 232;
(5) [(5) p.1202] ' CE 1972, Report ', Vol. I, pp. 41-42, para. 1.66; pp. 53-54, Annex II; p. 54, para. 5;
(6) [(6) p.1202] Cf. commentary Art. 8, sub-paras. (g), (j), (k) of the Protocol, supra, pp. 130-133;
(7) [(7) p.1203] O.R. XI, p. 168, CDDH/II/SR.18, para. 19;
(8) [(8) p.1203] Ph. Eberlin, "The Identification of Medical Aircraft in Periods of Armed Conflict", ' IRRC ',
July-August 1982, p. 202;
(9) [(9) p.1203] O.R. III, p. 386, CDDH/II/329, para. 2;