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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.
Medical aircraft in contact or similar zones
[p.287] Article 26
-- Medical aircraft in contact or similar zones
[p.288] 991 Article 26
is the second of three articles laying down the general rules for the use of medical aircraft, depending on the area
(zone) where they are.
992 It will be noted that this article actually imposes only one obligation on the Parties to the conflict, namely, that they must
respect medical aircraft as soon as they have been recognized as such
in the areas defined in the article. In addition, the great risk
taken by medical aircraft operating in such areas without prior
agreement with the adverse Party is pointed out, though such action
is not prohibited.
993 The second paragraph of the article defines the expression ' contact zone, ' which is used in the first paragraph. As it is
virtually impossible to interpret the first paragraph without
understanding this definition, we will begin by examining the second
994 This paragraph defines the expression ' contact zone '.
995 The draft adopted by the Conference of Government Experts in 1972 referred to the forward part of the battle area, (1) as opposed to
the ' rear part, ' and these concepts were described in the following
"in the forward part are to be found units in direct contact with the enemy. Freedom of movement is limited; the forces
are exposed to direct enemy vision and hence to direct
firing. In the "rear part" of the battle area are the units
belonging to the second echelon and the reserve units of the
troops in hostile contact. They are less exposed to enemy
vision and firing, and there is, therefore, greater freedom
of movement". (2)
996 During the Diplomatic Conference a mixed Working Group from Committees II and III met with a view to recommend the "terms that
should be used to cover the various military situations that are
envisaged in some of the articles contained in the Draft Additional
Protocols" and the "definitions of the terms recommended". (3)
997 The expression "contact area" was defined by the Working Group as follows: "In an armed conflict, that area where the most forward
elements of the armed forces of the adverse Parties are in contact
with each other". (4)
[p.289] 998 As the Rapporteur of the Drafting Committee of Committee II stated, this Committee considered that "the expression contact zone
corresponded grosso modo to the definition proposed by the Joint
Working Group". (5)
999 The fact that it was limited to areas ' on land ' was in order to "exclude naval engagements where there was, strictly speaking, no
"contact zone"". (6) It should be added that, in any event, such
engagements would be governed by the laws of war at sea, which were
not dealt with by the CDDH, and that the very concept of a contact
zone basically, if not exclusively, belongs to the field of war on
1000 On the other hand, as the Rapporteur stated unequivocally, land areas also include "rivers, shallow waters and beaches where fighting
could take place in the same way as anywhere on other land
1001 Though the phrase "especially where they are exposed to direct fire from the ground" was added, this was as a "reference to a
military scenario" by way of a clarifying example. (8) In this
respect the Rapporteur indicated that ' direct fire ' should be
understood as "any shooting where the person shooting had his target
in sight, as distinguished from indirect fire, where the gunner did
not see the target but directed the shooting on the basis of data
other than his own vision". (9) Moreover, it should be stressed that
the direct fire referred to here is ' from the ground, ' i.e., it
does not include direct fire that might come from aircraft. Thus the
extent of the contact zone can vary considerably, depending on the
range of the weapons used and the configuration of the ground.
1002 The term ' forward elements ' should not be interpreted merely as a small number of scouts, but as all troops in contact with the
enemy. In short, the contact zone is simply the "forward part" of the
field of battle.
1003 Finally, as the Rapporteur of the Drafting Committee stated, it should be noted that this definition does not claim to be applicable
in other contexts and was established only for the specific needs of
. (10) However, the possibility cannot be excluded that it
might be used for reference in the future.
' First sentence '
1004 This paragraph first sets out to define the areas where the article will apply.
1005 First it refers to "parts of the contact zone which are physically controlled by friendly forces". Even this forward part of
the battle-area constituting the contact zone can be sub-divided into
zones controlled by each of the Parties to the conflict. (11)
[p.290] 1006 Secondly it refers to "areas the physical control of which is not clearly established". Although there are zones in the "forward part"
of the battle-area, where one or other of the Parties has clearly
established control, there are others where physical control by one
or other of the Parties is not clearly established. Furthermore, the
latter zones may be predominant in view of the nature of modern
conflicts. These are areas where, as the Conference of Government
Experts expressed it in 1972, the military situation is "not
clear", (12) where the opposing forces may be entangled as a result
of a series of assaults and repulses.
1007 Thus these are the two types of areas covered by Article 26
, excluding the part of the contact zone dominated by enemy forces.
That part of the contact zone is subject to the same rules as any
area under the control of the adverse Party. (13)
1008 In addition, it is stated that Article 26
applies not only ' in ' the areas defined above, but also ' over ' those areas, i.e., in the
air space situated above such areas. In fact, the article applies
' primarily ' to the air space, since it deals with aircraft.
However, by making this distinction it is clearly shown that the
protection of medical aircraft does not apply only when they are
flying over such areas, but also when they are on the ground.
1009 The rest of the first sentence is a straightforward remark, implying a recommendation. Reference is made to the risk run by
medical aircraft used in such areas without prior agreement. Thus an
implicit recommendation is made to conclude such agreements between
the "competent military authorities of the Parties to the conflict".
The draft referred to "local military authorities". Even though such
agreements are generally concluded at that level, Committee II
considered that a specific mention of local authorities was unduly
restrictive. As one delegate pointed out, it is important to avoid
"a situation in which protection for medical aircraft was not fully effective merely because it had been impossible to
reach prior agreement between the local military authorities,
whereas there might have been means of communication and
agreement between the Parties at a higher level". (14)
1010 There is nothing in the article to indicate that there is any form of ' obligation ' for the Parties to the conflict to conclude
such agreements. However, given that medical aircraft can play a role
of paramount importance in rescuing the wounded, and that the risk
they would run by operating without an agreement would be
considerable, it seems clear that the spirit of the text means that
Parties to the conflict should not refuse to conclude such agreements
without a valid reason. Moreover, the draft presented to the
Conference of Government Experts in 1972 stated that the Parties to
the conflict shall permit, and an exception was only made in case of
imperative military necessity.
1011 The procedure and the content of the agreement are specified in Article 29
' (Notifications and agreements concerning medical
aircraft). ' (15)
' Second sentence, first part '
1012 As is made clear in the second part of the sentence, this first part should not be interpreted as a sort of "free for all". The
drafters of the Protocol merely refused to allow States engaged in
armed conflict to be made responsible for medical aircraft flying
without prior agreement in the area defined above. Thus the
authorities of such States cannot be held responsible when a medical
aircraft flying in such circumstances, and not yet identified, is
shot down by mistake.
' Second sentence, second part '
1013 Basically this second part of the sentence repeats the second paragraph of the draft. Some delegates wished to delete it in order
to impose a total ban on medical aircraft flying in such areas
without prior agreement. (16) With some justification they relied for
this view on the Conventions, particularly Article 36
of the First
Convention, which makes agreement a condition sine qua non of the use
of medical aircraft.
1014 The fact that the second part of the sentence was retained means that medical aircraft flying in such areas without prior agreement,
though taking considerable risks, as stressed in the article,
nevertheless do not lose their right to protection. Obviously there
is a risk that members of the armed forces of the adverse Party might
fire before recognizing that the aircraft are ' medical ' aircraft,
but as soon as they have recognized them as such, they are under a
strict obligation to respect the aircraft, i.e., not to take aim at
them, and by violating this obligation, they would commit a grave
breach (even though in such cases it would obviously be very
difficult to establish fault).
1015 The connection between this article and Article 30
' (Landing and inspection of medical aircraft), ' paragraph 1, needs to be pointed
out. This provides that over "areas the physical control of which is
not clearly established", but only over such areas, medical aircraft
may be ordered to land and must obey any such order. If aircraft
flying over such areas are unequivocally ordered to land and clearly
refuse to comply, they lose the right to respect which is laid down
in the second part of the second sentence. It was rightly pointed out
in Committee II that it might be difficult to order a landing and
make an inspection of aircraft in such areas. (17) In this respect it
is clearly impossible to require a medical aircraft to land somewhere
where it is not possible to land or, in some situations, to alight on
water satisfactorily. However, even if there is a possibility, it was
pointed out that it might happen that a medical aircraft decided not
to obey the order (18) and attempted to return to the rear.
Nevertheless, it will be recalled that a pilot taking such a decision
would be in contravention of the provision laid down in Article
' (Landing and inspection of medical aircraft), '
paragraph 1, second sentence, and that he would run the risk of his
aircraft being shot down.
1016 A summary of the situation may be stated as follows: in the part of the contact zone physically controlled by friendly forces, medical
aircraft operate at their own risk, if there is no agreement, but
they should be respected by the adverse Party as soon as the latter
has realized that it is a medical aircraft.
1017 The situation is the same in areas the physical control of which is not clearly established, though the adverse Party has the
additional option of ordering the aircraft to land or, in some cases,
to alight on water -- provided that it is actually possible to carry
out such an order. If the aircraft clearly refuses to comply with
this order, it loses its right to be respected.
' Y.S. '
(1) [(1) p.288] ' CE 1972, Report ', Vol. I, p. 46, para. 1.83
and draft Article 25, para. 1, of the Committee;
(2) [(2) p.288] F. de Mulinen, "Signalling and Identification of Medical Personnel and Material", IRRC, September 1972,
p. 479; cf. also O.R. XI, p. 505, CDDH/II/SR.45, para. 19;
(3) [(3) p.288] O.R. XIII, p. 199, CDDH/II/266-CDDH/III/255, para. 1; cf. also F. de Mulinen, "A propos de la
Conférence de Lucerne et Lugano sur l'emploi de certaines
armes conventionnelles". 9 ' Annales d'Etudes
internationales, ' Geneva, 1977, pp. 123-125;
(4) [(4) p.288] On this subject, cf. O.R. XIII, p. 203, CDDH/II/266-CDDH/III/255, Annex 1;
(5) [(5) p.289] O.R. XI, p. 591, CDDH/II/SR.52, para. 12;
(6) [(6) p.289] Ibid;
(7) [(7) p.289] Ibid;
(8) [(8) p.289] Ibid;
(9) [(9) p.289] Ibid;
(10) [(10) p.289] Cf. ibid., para. 15;
(11) [(11) p.289] On the meaning of the expressions "physically controlled" and "friendly forces", cf. commentary Art. 25,
supra, p. 284;
(12) [(12) p.290] CE 1972, Report, Vol. I, p.46, para. 1.82;
(13) [(13) p.290] On this subject, cf. commentary Art. 27, infra, p. 293;
(14) [(14) p.290] O.R. XI, pp. 521-522, CDDH/II/SR.46, para. 43;
(15) [(15) p.290] Cf. commentary Art. 29, infra, p. 307;
(16) [(16) p.291] Cf. particularly O.R. XI, p. 520, CDDH/II/SR.46, para. 38. On the relationship between the
articles of the Conventions and those of the Protocol
relating to medical aircraft, cf. in addition, supra,
commentary Art. 24, p. 279;
(17) [(17) p.291] O.R. XI, p. 541, CDDH/II/SR.48, para. 17;
(18) [(18) p.291] Ibid., p. 542, para. 23;