Traités, États parties et Commentaires
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Commentaire of 2016 
Article 36 : Medical aircraft
Text of the provision*
(1) Medical aircraft, that is to say, aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment, shall not be attacked, but shall be respected by the belligerents, while flying at heights, times and on routes specifically agreed upon between the belligerents concerned.
(2) They shall bear, clearly marked, the distinctive emblem prescribed in Article 38, together with their national colours, on their lower, upper and lateral surfaces. They shall be provided with any other markings or means of identification that may be agreed upon between the belligerents upon the outbreak or during the course of hostilities.
(3) Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited.
(4) Medical aircraft shall obey every summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after examination, if any.
(5) In the event of an involuntary landing in enemy or enemy-occupied territory, the wounded and sick, as well as the crew of the aircraft shall be prisoners of war. The medical personnel shall be treated according to Article 24, and the Articles following.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2423  Collection and evacuation of the wounded and sick, as well as the transport of medical personnel and equipment, are a vital part of efforts to mitigate the suffering associated with armed conflict. Often the fastest, and sometimes the only, means of carrying out these humanitarian tasks is by aircraft (a term which includes helicopters). It is axiomatic that rapid casualty evacuation is a genuine life-saving measure in modern conflict. Indeed, the decisive effect of evacuating battlefield casualties to a facility able to stabilize their injuries within the shortest possible time is commonly referred to as the critical ‘ten platinum minutes’ or as ‘the golden hour’, depending on the type of injury.[1]
2424  Nowadays, evacuation of the wounded and sick by air is an integral component of military medical capabilities for many armed forces possessing rotary and/or fixed-wing air transports. Accordingly, maximizing the protection of aircraft exclusively engaged in the collection, evacuation and treatment[2] of the wounded and sick or in the transport of medical personnel and equipment supports one of the main objectives of international humanitarian law, i.e. to ensure respect for and protection of the wounded and sick. In the context of the First Convention, the wounded and sick are understood to be those who are members of armed forces and of groups affiliated with them.[3]
2425  Article 36 confers protection on medical aircraft but subjects that protection to relatively stringent criteria. The reason for the stringency is that, at the time of drafting the Geneva Conventions, the precise nature of an enemy aircraft was very difficult to ascertain from a distance. Moreover, ever since the advent of aviation, there has been a concern that medical aircraft may be used as a cover for acquiring information of military value.
2426  In many ways, the extent of capabilities and operations involving the transport of the wounded and sick has outpaced the rules established by the Geneva Conventions to accommodate this humanitarian activity. Since 1949, several initiatives to update Article 36 and other provisions of the Geneva Conventions related to the protection of medical aircraft have resulted in a closer symmetry between international humanitarian law and operational practice.[4] Nowadays, it is therefore impossible to understand the full mosaic of rules applicable to medical aircraft by focusing exclusively on the relevant provisions in the Geneva Conventions.[5] The latter continue, however, to form the foundation for such regulation.
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B. Historical background
2427  If regulated effectively, the use of aircraft exclusively employed for medical purposes and the obligation to respect and protect such aircraft clearly contribute to alleviating the suffering of victims of armed conflict.
2428  Aircraft have been used for medical purposes in time of armed conflict since 1910.[6] As a new phenomenon on the battlefield at the time, the employment of medical aircraft naturally triggered questions as to under which conditions they could, if at all, be protected by international humanitarian law. As early as 1912, concerns were raised in legal literature about the intelligence advantage that could potentially be gained by aircraft while searching for the wounded or transporting them from the battlefield.[7] Accordingly, a clear distinction was made between the use of aircraft to collect and evacuate casualties, which was considered to be a protected activity,[8] and the use of aircraft to search for casualties, which was deemed to be an unprotected activity.[9]
2429  After the First World War, the use of aircraft for medical purposes in time of armed conflict became too frequent for it to be addressed solely in academic publications. Thus, in 1923, the (non-binding) Hague Rules of Air Warfare declared that the ‘principles’ of the 1906 Geneva Convention and of the 1907 Hague Convention (X) applied to what were called at the time ‘flying ambulances’.[10]
2430  The topic was subsequently taken up by the International Conference of the Red Cross. The agenda of the 12th International Conference, held in Geneva in 1925, included a discussion on a draft convention for the adaptation of the principles of the 1906 Geneva Convention to aerial warfare.[11] The proposed text was approved by the International Conference and sent to the Swiss Federal Council to be placed before the Diplomatic Conference. However, when convening the conference in 1929 for the purpose of revising the Geneva Convention and concluding a new convention on the treatment of prisoners of war, the Swiss Government did not think it advisable to add a new and complex problem to the already extensive programme.[12]
2431  Nonetheless, the issue had become so topical and so important that it was deemed impossible to revise the 1906 Geneva Convention without making provision for the use of medical aircraft. However, efforts to address the issue at the 1929 Conference suffered two impediments. First, there was insufficient time to draw up a complete set of detailed provisions. Second, the lack of sufficient notice that the matter would be on the agenda of the Diplomatic Conference prevented governments from including the necessary experts in their delegations.[13] The issue was therefore only settled by including some basic principles in the form of a new Article 18 in the 1929 Geneva Convention on the Wounded and Sick.[14] In recognition of the insufficiency of this solution, the Conference recommended in its Final Act ‘that the countries participating in the Geneva Conventions should meet in conference in the near future with the view to regulate as comprehensively as may be necessary the use of medical aircraft in time of war’.[15]
2432  The provision dealing with medical aircraft was arguably the most significant innovation in the 1929 Convention. However, limiting the use of such aircraft was an important aspect of this regulation and reflected the earlier concerns. Subsequently, the ICRC submitted a draft to the 14th International Conference of the Red Cross, held in Brussels in 1930, for a new convention adapting the principles of the Geneva Convention to aerial warfare.[16] The Conference approved this draft, and instructed the ICRC to transmit it to the Swiss Government to be included in the agenda of the next Diplomatic Conference, set for 1940.[17] However, this conference was postponed owing to the outbreak of the Second World War.
2433  After the Second World War, when the ICRC resumed its work on the revision of the Geneva Conventions, the idea of developing a separate treaty dealing exclusively with medical aircraft was again raised.[18] The special draft convention was submitted to the Preliminary Conference of National Red Cross Societies in 1946, with a request for views on possible extensions or modifications, in the light of the various countries’ experiences. However, the ICRC proposed to abandon efforts to develop a separate convention, prompted by the recognition that the protection afforded by the Geneva Convention to the wounded and sick as well as to the buildings and personnel exclusively engaged in or devoted to their collection and care was equally applicable to air and to land transport. The ICRC concluded that the special conditions prevailing at sea during armed conflict – which in 1907 prompted the adaptation of the principles of the Geneva Convention to maritime warfare – did not extend to aerial operations. Medical aircraft were understood merely as a means, like any other, of transporting or aiding the wounded and sick.[19]
2434  The 1947 Conference of Government Experts agreed that: (i) Article 18 of the 1929 Geneva Convention on the Wounded and Sick had met with very limited application during the Second World War; (ii) technical progress in fighter aircraft and anti-aircraft artillery rendered somewhat unrealistic any attempt to develop the use of protected medical aircraft on a wide scale; and (iii) that the issue was further complicated by the increasingly common practice of evacuating the wounded by air under fighter escort. Thus, the delegates concluded that medical aircraft should not be dealt with in a separate treaty. Instead, they took the view that the substance of Article 18 of the 1929 Convention could be retained, provided a provision was added governing flights by medical aircraft over the territory of neutral Powers.[20] This last issue was addressed through the inclusion of Article 37 in the First Convention and Article 40 of the Second Convention.
2435  The same view prevailed at the 1949 Diplomatic Conference, despite a proposal put forward by two delegations to allow greater use to be made of medical aircraft. They insisted that aeronautical progress, far from undermining the efficacy of medical aviation, offered excellent possibilities of bringing rapid aid to the wounded and of providing unprecedented speed of evacuation to vital medical treatment, which might be at a great distance away. The draft articles submitted by the two delegations recommended that medical aircraft be used more extensively and that such use should include authorized flight over enemy territory.[21]
2436  These proposals did not lead, however, to extensive revisions to Article 18 of the 1929 Convention. This lack of progress was highlighted in the 1987 commentary on Additional Protocol I, which noted that ‘[f]ar from developing these rather embryonic provisions of the 1929 Convention, the Diplomatic Conference of 1949 virtually paralyzed medical aviation when it subordinated all activity of medical aircraft of a Party to the conflict to a prior agreement with the adverse Party’.[22]
2437  Articles 24–31 of Additional Protocol I further clarified the rules applicable to medical aircraft in time of armed conflict. In practice, these rules supplement those of the present Convention, as they are binding on the Parties to the Protocol and are widely considered by States not party to the Protocol to provide important and helpful clarification of the existing rules. These more recent provisions indicate the clear and unambiguous objective of ensuring that Parties to a conflict endeavour to maximize the protection of all medical aircraft, even in situations where such aircraft are not necessarily protected through compliance with the strict treaty provisions related to routes and transit over contested or even enemy territory.
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C. Definition of medical aircraft
2438  In line with the scope of application of Chapter VI (‘Medical transports’) as a whole and within the context of the First Convention in particular, Article 36 only applies to medical aircraft used by the armed forces, by groups mentioned in Article 13 and by voluntary aid societies operating under the conditions set down in Article 26 or 27. Medical aircraft so employed may, but need not, be the property of the aforementioned categories; they may also, for example, have been leased.
2439  In time of armed conflict, other actors – such as the ICRC and other impartial humanitarian organizations – may also operate aircraft for medical transport. This may happen pursuant to an agreement with the Parties and as a substitute to their own air transport, for example where they lack such means of transport themselves. Without prejudice to the fact that these aircraft may also be used to transport wounded and sick combatants, as far as the Geneva Conventions are concerned such aircraft are regulated by Article 22 of the Fourth Convention.
2440  The term ‘aircraft’ encompasses all airborne transports such as planes, airships and helicopters.[23] In practice, helicopters are particularly important for removing the wounded and sick from the battlefield. The law prescribes neither a minimum nor a maximum size as a constitutive criterion for an aircraft to qualify as a medical aircraft. Any kind of aircraft may qualify as a medical aircraft. Thus, so long as it is exclusively employed in a medical capacity for the duration of its medical mission, a military aircraft may be a medical aircraft.[24] The same is true, for example, of State aircraft, civilian aircraft or civilian airliners.[25] Advances in transportation technology may, in the future, result in new types of aircraft (including unmanned aircraft) falling within the scope of Article 36.[26] Once the transport qualifies as a medical aircraft, it will remain protected so long as it does not commit, or is not used to commit, outside its humanitarian duties, an act harmful to the enemy (for the meaning of this term, see section D.2).
2441  In order to qualify as a medical aircraft, an aircraft needs to be ‘exclusively employed’ for the ‘removal of wounded and sick’ and/or for the ‘transport of medical personnel and equipment’. This is consistent with other definitions of the term ‘medical aircraft’, which indicate that any aircraft exclusively engaged in, or assigned exclusively to, a medical mission falls within the definition.[27] Today, these definitions are viewed as authoritative when considering which objects may qualify as ‘transports or vehicles’ in the sense of Article 35.[28] An aircraft need not actually be engaged in one or both of these activities in order to qualify as a medical aircraft. An aircraft may also qualify as a medical aircraft, for example, if it is on its way to remove the wounded and sick from the battlefield but does not yet have any wounded or sick on board.
2442  A first activity for which medical aircraft may be employed is the ‘removal of wounded and sick’. Within the context of the First Convention, the term ‘wounded and sick’ primarily refers to the wounded and sick covered by Articles 12 and 13. However, the fact that the medical aircraft’s activities may extend to wounded and sick civilians does not disqualify the aircraft as a medical aircraft.[29] Aircraft used for the search and rescue of able-bodied combatants (often referred to as ‘combat SAR’) or for the transport of such combatants (even when there are wounded and sick on board) do not qualify as medical aircraft.[30]
2443  While the wounded and sick are being removed from the battlefield and conveyed to a land-based medical facility, it is compatible with the purpose of medical transport that they may already receive medical treatment on board the aircraft.[31] Although the drafters of the Geneva Conventions did not envision that medical aircraft would develop to the point of containing full-scale medical treatment capabilities which would go beyond first-aid treatment, subsequent State practice clearly shows that this has become both technically feasible and normatively acceptable. However, except by prior agreement with the enemy, medical aircraft may not be used to search for the wounded and sick.[32]
2444  A second activity for which medical aircraft may be employed is the ‘transport of medical personnel and equipment’. Within the context of the First Convention, the term ‘medical personnel’ refers to all categories of personnel covered by Chapter IV of the Convention. Where the rules of Additional Protocol I apply, the term ‘medical personnel’ can also cover other categories of medical personnel (such as civilian medical personnel), as specified in Article 8(c) of the Protocol. The term ‘medical equipment’ has to be interpreted broadly as including not only the equipment (including surgical equipment) necessary for medical care, but also medicines and heavier equipment such as a field hospital.
2445  There is no requirement that medical aircraft be organized, specially equipped or permanently detailed for medical purposes.[33] This is clearly justified as the exigencies of war may require that aircraft (including military aircraft) be temporarily called upon to perform medical duties. If and for as long as such aircraft are exclusively employed for such duties, they will qualify as medical aircraft. In summary, it can be said that the First Convention, and Additional Protocol I for that matter, provide a great deal of flexibility as to which type of aircraft can qualify as medical aircraft. The same cannot be said of the conditions under which an aircraft, once it qualifies as a medical aircraft, will actually be entitled to protection.
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D. Paragraph 1: Conditions for protection
1. General considerations
2446  In order to be respected and protected, a medical aircraft must be exclusively employed for medical purposes. The term ‘exclusively employed’ means that, in order for an aircraft to qualify as a medical aircraft, it must be used solely for medical purposes.
2447  The word ‘exclusively’ also implies that a medical aircraft cannot be used to undertake humanitarian activities which are not medical in nature.[34] In addition, it is understood that a medical aircraft may not commit, or be used to commit, an act harmful to the enemy (such as transporting munitions or conducting aerial intelligence operations), without forfeiting protected status. There is no reference to ‘acts harmful to the enemy’ in Article 36. As far as the First Convention is concerned, this notion only appears in Article 21 in relation to the loss of protection of medical units and establishments of the medical service of the armed forces. Despite the Convention’s silence in this respect, it is uncontroversial that a medical aircraft may lose its protection if it commits, or is used to commit, acts harmful to the enemy. This is the sole basis on which protection may be lost.[35]
2448  An aircraft need not be exclusively employed for medical purposes for the entire time it is in the service of a Party to the conflict.[36] Rather, for the duration of even one particular flight, an aircraft may qualify for protection as a medical aircraft under the Convention, so long as it complies with the conditions applicable to medical aircraft, primarily among them exclusive employment for medical purposes.[37] Accordingly, belligerents may use aircraft in multiple roles, for example sending transport aircraft to the front line carrying munitions and soldiers and, after unloading that cargo, transporting the wounded and sick or medical personnel and equipment away from the front. In the former case, the aircraft is not entitled to protection, nor to display the distinctive emblem; in the latter case, the aircraft will be entitled to all due protections and to display the distinctive emblem, so long as other articles of the Convention are complied with.
2449  Aircraft exclusively employed for medical purposes, as well as their crew, may within certain limits be armed. While the Geneva Conventions themselves remain silent on the question of whether medical aircraft (and, separately, their personnel) may be armed, both Additional Protocol I and subsequent State practice have introduced helpful clarifications in this regard. First, according to Article 28(3) of Protocol I, there may be ‘small arms and ammunition taken from the wounded, sick and shipwrecked on board and not yet handed to the proper service’.[38] Second, like medical personnel covered by Article 24, it is equally lawful, under that provision, for the personnel of medical aircraft to carry ‘light individual weapons as may be necessary to enable the medical personnel on board to defend themselves and the wounded, sick and shipwrecked in their charge’. The medical aircraft itself may be equipped with purely deflective means of defence. Furthermore, light individual weapons (such as removable weapons in the door mount of a helicopter) may also be mounted on the aircraft, but can only be used for self-defence, that is for the defence of the personnel on board and of the wounded and sick in their charge.[39] The considerations developed on this topic under Article 35 in connection with military medical transports apply mutatis mutandis to medical aircraft.[40]
2450  Most importantly, the plain text of Article 36 confers protection on medical aircraft only ‘while flying at heights, times and on routes specifically agreed upon between the belligerents concerned’.[41] The requirement of prior agreement was born out of practical considerations for both the protection of the aircraft and the prevention of abuse. The delegates that recommended this solution explained that, under the conditions of warfare that prevailed while the Geneva Conventions were being discussed prior to 1949, visual identification of aircraft was often impracticable. Aircraft can be fired upon from well beyond visual range, at distances where colour markings are indistinguishable. Even when subject to visual observation, the nature of aircraft will often make it impracticable to positively identify and distinguish between medical aircraft, on the one hand, and aircraft engaged in belligerent activities, on the other hand. The delegates therefore concluded that only previous agreement could afford certainty of protection to medical aircraft.[42] Prior agreement also provides belligerents with adequate safeguards against abuse.
2451  Agreements on the operation of medical aircraft may be concluded on a case-by-case basis, or a general agreement might be reached between the Parties to the conflict. Such agreements would fall within the definition of a special agreement in the sense of common Article 6.[43] In order to reduce the uncertainty associated with the use of medical aircraft and to maximize their protection, Parties to a conflict should endeavour to establish such agreements, which may be facilitated through the good offices of the ICRC or any other impartial humanitarian organization.
2452  The use of medical aircraft is not, however, contingent on such agreements. Parties to a conflict may employ such aircraft without an agreement referred to in Article 36(1). When doing so, these aircraft operate at their own risk.[44] Of course, any attack must be predicated on an assessment that the aircraft qualifies as a military objective and that all other rules on the conduct of hostilities are complied with.[45] In other words, the mere absence of an agreement does not give a Party a licence to attack or capture such aircraft. The lack of an agreement does not in and of itself transform a medical aircraft into a military objective.
2453  Indeed, concern has been expressed that the protected status of medical aircraft seems predicated on the agreement itself.[46] However, the protection of the aircraft and its occupants is not contingent on an agreement. Rather, the wounded and sick, medical personnel and equipment are to be respected and protected, and being aboard a medical aircraft operating in the absence of an agreement does not divest them of this protection.[47] Agreements facilitate the fundamental respect due to medical aircraft by reducing the likelihood of them being misidentified. The absence of an agreement exposes a medical aircraft to the substantial risk that a Party will be unable to positively distinguish it from an enemy aircraft that may be subject to lawful attack. In view of this risk, all Parties to a conflict should be guided by general humanitarian principles and refrain from resorting to extreme measures (for example, an attack on and destruction of an aircraft that cannot be positively identified as a military objective). Instead, they should make all reasonable efforts in the circumstances to verify the status of the aircraft (for example by forcing it to land for the purpose of inspection).[48]
2454  The distinction between the specific protection resulting from prior agreements and the general protection afforded to the wounded and sick, to those exclusively engaged in their collection and care and to medical transports is addressed extensively in Additional Protocol I.[49] While the Protocol includes a rule making maximum protection for medical aircraft flying over territory controlled by an enemy contingent on a prior agreement, it also makes clear that the absence of such an agreement does not release the Parties to a conflict from their obligations to respect and protect the wounded and sick.[50] To that end, the Protocol requires operators of medical aircraft to make every effort to signal to the enemy the protected status of their craft.[51] Furthermore, the Protocol emphasizes that shooting down medical aircraft flying without a prior agreement is a measure of last resort.[52] The codification of this distinction between the general obligations to respect and protect the wounded and sick and medical personnel and equipment, on the one hand, and the enhanced protection derived from prior agreement, on the other hand, represented a significant departure from the 1949 Convention but ultimately reflected the drafters’ response to the concerns prompted by the requirement of prior agreement.
2455  Once an aircraft qualifies as a medical aircraft, the protection due to it is identical to that accorded to land-based medical transports, namely they must be respected and protected at all times. Article 36 refers to an obligation to ‘respect’ such aircraft in addition to the prohibition on attacking them. This means that the obligation to ‘respect’ extends beyond the prohibition of attack, although Article 36 does not elaborate on what ‘respect’ entails in practice. Logically, it should include refraining from measures short of attack that interfere with the medical function of the aircraft (such as ‘painting’ the aircraft with air defence radar in a hostile way which interferes with its ability to operate, visibly training air defence weapons on the aircraft, or capturing it).[53] In addition, a Party to an armed conflict which deploys aircraft (including unmanned aerial vehicles) in the area in which the enemy’s medical aircraft is known to be operating should notify, whenever feasible, the enemy of the presence and flight path of these vehicles so as to safeguard the medical aircraft’s integrity at all times. However, it is acknowledged that, in particular with regard to the operation of military aircraft, military tactical and operational considerations, including the lack of a viable means of communication, may render such a notification not feasible.
2456  The obligation to ‘protect’ entails taking positive measures to assist or support the functioning of the medical aircraft. For further analysis of the term ‘protect’, see the commentaries on Article 19, paras 36–39, and Article 35, para. 28.
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2. Loss of protection
2457  The phrase ‘act harmful to the enemy’, outside the aircraft’s medical function, is intentionally broad. Thus, it includes scenarios such as a medical aircraft bearing the protective emblem while parked next to a military objective with the aim of shielding the latter from attack,[54] transporting combatants or ammunition (even when wounded and sick persons or medical equipment are simultaneously on board), or cloaking an intelligence-gathering aircraft with the protective emblem.[55]
2458  While the lack of a definition creates some uncertainty as to the line between permissible activities and activities harmful to the enemy, it is clear that so long as the aircraft is exclusively engaged in a medical function, it may not be considered to be engaged in an act harmful to the enemy. Proximity to non-medical military aircraft may alter this conclusion, as including medical evacuation vehicles among non-medical military vehicles is common operational practice. Whether such a situation amounts to an ‘act harmful to the enemy’ depends on factors such as the distance between a medical unit and a military objective and the amount of time the medical aircraft remained adjacent to a military objective. These factors may also be relevant in the assessment of whether there was an intention of shielding a military objective from attack.
2459  Furthermore, if a medical aircraft is being used to undertake a humanitarian activity other than a medical activity, such as the delivery of food to civilians, this does not constitute an act harmful to the enemy. Doing so is not desirable, however, since any deviation from its exclusively medical character may lead to confusion as to the aircraft’s true purpose. In order to avoid any confusion, such alternative use should best be covered by a prior agreement.
2460  Provided the grounds for doing so are reasonable, it can be expected that an opponent will construe any activities inconsistent with an aircraft’s medical duties as acts harmful to the enemy. Therefore, when a medical aircraft deviates from its strictly medical duties, and when this results in the aircraft qualifying as a military objective in the circumstances ruling at the time, it may be subject to lawful attack. For example, using a medical aircraft to transport combatants or supplies of value for combat operations or engaging in reconnaissance missions with no relation to the transport of the wounded and sick would be inconsistent with an exclusively medical function.[56] It is therefore essential that the Parties to an armed conflict remain constantly aware of the distinction between medical aircraft losing protection by virtue of being used to commit, outside their humanitarian duties, acts harmful to the enemy, and medical aircraft qualifying as military objectives (which may render them liable to attack), which hinges, inter alia, upon their making a direct contribution to military action. The assessment of whether the aircraft has lost protection does not ipso facto result in the conclusion that the aircraft constitutes a lawful object of attack. Therefore, each of these assessments must be considered distinct, although the second will often be predicated on the first. In practice, however, it is hard to conceive of circumstances in which the commission of an ‘act harmful to the enemy’ would not transform the aircraft in question into a lawful object of attack.
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E. Paragraph 2: Marking and other means of identification
2461  According to the first sentence of Article 36(2), medical aircraft are required to bear the distinctive emblem of the Convention, along with their national colours (e.g. the flag of the State to which the aircraft belongs), clearly marked on their lower, upper and lateral surfaces so that the distinctive emblem and national colours are visible from above, below and the sides. Wings are not mentioned in this regard, as certain types of aircraft which can qualify as medical aircraft have no wings, such as helicopters.
2462  Under the system of the 1929 Convention, the entire aircraft had to be painted white.[57] That provision was not maintained in the 1949 Convention owing to a combination of the increased difficulty of visual identification and the need to allow for greater ease in transforming any aircraft into a medical aircraft, since fitting it with the distinctive emblem is much more feasible than repainting the aircraft in its entirety. Nonetheless, it should be noted that the red cross, red crescent or red crystal emblems must always appear on a white background.[58] Thus, it is not sufficient to merely paint a red cross, red crescent or red crystal on an aircraft if the aircraft itself is not white;[59] a white background must be painted on as well. This clarification is important as any type of aircraft, including a military aircraft, may become a medical aircraft.
2463  The second sentence of Article 36(2) states that medical aircraft are to be provided with ‘any other markings or means of identification that may be agreed upon between the belligerents upon the outbreak or during the course of hostilities’. As is clear from the use of the word ‘may’, it is for the Parties to the conflict to decide whether they wish to conclude a special agreement on this point. This provision left the way open for future technical improvements in this field. Internationally agreed means of identifying medical aircraft include specialized radio codes, a flashing blue light, and use of secondary surveillance radar.[60]
2464  Because it is not uncommon for Parties to a conflict to use aircraft not bearing a distinctive emblem to transport the wounded and sick (for example when properly marked aircraft are unavailable), it is important to note that the mere absence of such markings neither deprives an aircraft of its qualification as a medical aircraft, nor allows the enemy to attack the aircraft.[61] The entitlement to protection under the Convention is inherent to transports assigned exclusively to carrying the wounded and sick or medical personnel.[62] The distinctive emblem itself, while the visible symbol of that protection, does not confer protection, it merely aids in identification.[63] An aircraft which is exclusively employed in medical activities but which does not bear the distinctive emblem does not therefore forfeit its protection. The critical factor in such cases will be the enemy’s knowledge of the aircraft’s function. Prior notification of that function would obviously facilitate such awareness.
2465  As already noted, aircraft may be used for non-medical purposes on the inbound flight and subsequently repurposed as a medical aircraft for the outbound flight or vice versa. The aircraft will, of course, only be protected during the time that it is exclusively engaged in removing or transporting the wounded and sick or medical personnel and equipment. Accordingly, it is essential that the distinctive emblem be removed or fully concealed during any phase of the mission in which the aircraft is not exclusively engaged in a medical function.
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F. Paragraph 3: Flight over enemy or enemy-occupied territory
2466  The Convention prohibits flights of medical aircraft over enemy or enemy-occupied territory.[64] The sole exception to this prohibition exists when an agreement (in the sense of Article 6) has been reached between the Parties to the conflict to allow such a flight. The agreement may take the form of ‘local arrangements’ between the Parties to the conflict ‘for the removal or exchange of [the] wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area’, as provided for in Article 15(3).
2467  The prohibition on medical aircraft flying over enemy or enemy-occupied territory resulted from concerns that such flights, absent prior agreement, compromised the legitimate needs of military security, specifically through unwarranted observation from such an aircraft. However, the requirement to obtain an agreement prior to being allowed to fly over enemy or enemy-occupied territory should not be seen as contrary to the humanitarian objective of this provision, as it might be perceived. Medical aircraft transport the wounded and sick from the front lines and medical personnel and equipment to forward areas. For these purposes, in a given range of conceivable scenarios, medical aircraft will fly over territory controlled by friendly forces.[65] However, if a medical aircraft must fly over enemy-controlled territory, to or from a besieged area for example, an agreement between the belligerents may provide for its safe passage. Such an agreement must specify the altitude, route and time of the aircraft’s flight over enemy territory in order to avoid misidentification and ensure its protection from attack.[66]
2468  Failure for any reason, including by mistake, to comply with the prohibition exposes the aircraft to all the dangers inherent in flying over enemy or enemy-occupied territory. Even then, a Party needs to comply with the rules regulating the conduct of hostilities. For example, assuming that the adverse Party can reasonably be expected to know that the aircraft is protected, the belligerent must attempt to warn the offending plane by radio or order it to land before resorting to the extreme measure of attacking it (which will only be permissible if the aircraft qualifies as a lawful object of attack and if all applicable rules regulating the conduct of hostilities have been complied with). In fact, the first response to an offending medical aircraft should be to issue a summons to land under Article 36(4). In this respect, it must be noted that Additional Protocol I substantially modified this rule by lessening the prohibitive aspect and instead highlighting the risk inherent in flying over enemy territory in the absence of a prior agreement.[67] Furthermore, once the aircraft has landed, the craft, its occupants and medical supplies must be accorded the full protection applicable in all circumstances to the wounded and sick and to those exclusively engaged in their collection and care.[68]
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G. Paragraph 4: Summons to land
2469  The summons to land provides the adverse Party with a safeguard against abuse; it is the one real means of ensuring that the aircraft is exclusively employed for medical purposes. However, a summons to land may only be issued for the purpose of inspecting an aircraft to ascertain that it is indeed performing a medical function and is not violating any of the restrictions placed on such aircraft; there can be no other reason or justification for a summons to land.[69]
2470  Medical aircraft must obey all summonses to land. This requirement applies to aircraft flying over enemy or enemy-controlled territory, whether authorized to do so or not. The requirement also applies to medical aircraft flying over territory the physical control of which is not clearly established, which may also be the case if they are flying close to enemy lines.[70]
2471  A separate analysis is required for the scenario where, despite reasonable efforts to warn the aircraft, the Party issuing the warning reasonably concludes that the aircraft has received the warning and failed to act on it within a reasonable time, for example by ignoring the summons or by unambiguously making evasive manoeuvres. If that happens, depending on the circumstances the aircraft might qualify as a military objective in accordance with the law applicable to the conduct of hostilities.[71] As indicated by the word ‘explicitly’, the mere absence of a response to a summons to land cannot be construed as an act harmful to the enemy as the medical aircraft may genuinely not have received the summons.
2472  This scenario, however, needs to be distinguished from that in which a Party realizes that an enemy aircraft has deviated from the conditions of an overflight agreement and has determined that the aircraft is a medical aircraft. In that case, the belligerent must make all reasonable efforts to issue that aircraft with a summons to land. Further, the Party may have other options available, such as forcing the aircraft to land by accompanying it with fighter jets or using close-range communications to convey the summons to land.
2473  There is no set way of delivering a summons. This is a technical question that is not addressed in the Convention, but important and useful guidance can be found in Article 14 of the Regulations concerning identification annexed to Additional Protocol I.
2474  Good practice in delivering a summons to land would include broadcasting the summons on a pre-approved frequency, the specifics of which – in case a prior agreement has been reached to allow the flight over enemy or enemy-occupied territory – would be determined along with the time, route and altitude requirements for all flights over enemy territory. If the medical aircraft flies in the absence of a prior agreement, the Party issuing the summons to land must take all reasonable measures to ensure that the summons actually reaches the persons in control of the aircraft.
2475  Article 36(4) states that an aircraft which has landed pursuant to a summons may be examined. The provision does not, however, contain any guidance on how such examination is to take place (especially keeping in mind the constraints linked to the presence on board of the wounded and sick), or which purpose it may serve. These considerations, in addition to their flowing from the object and purpose of Article 36, have now been addressed in Article 30 of Additional Protocol I.[72] After obeying a summons to land, a medical aircraft may be inspected by the adverse Party to ensure that it is exclusively employed for medical purposes. Where the aircraft is found to be in compliance with the Convention, it must to be allowed to resume its flight without delay.[73] Inspection should be conducted promptly to enable aircraft operating within the bounds of the law to resume their medical mission quickly. The purpose of the inspection is not to unduly burden the aircraft; rather, it is to enable the enemy to ensure that the provisions of the Convention are being respected, as all Parties to a conflict using medical aircraft benefit if the belligerents adhere to the law. One of the main objectives of medical aviation is to permit the rapid evacuation of the wounded and sick and the transport of medical personnel and equipment. Neither of these categories of protected persons and objects must be allowed to suffer because the enemy has exercised its right of inspection – all the more so if the suspicion of improper activity has been discounted by the inspection. Additionally, good faith compliance by the crew to the summons justifies the obligation to allow the aircraft to resume its medical mission promptly.
2476  If examination reveals that the medical aircraft has been used to commit an ‘act harmful to the enemy’ outside its humanitarian duties, the aircraft loses its entitlement to be ‘respected and protected’. In that case, based on the relevant rule of Additional Protocol I, the aircraft may be seized, the wounded and sick taken prisoner, and the medical personnel and material treated according to the general rules of the Convention.[74] At all times, however, the Party which proceeds to such measures remains responsible for ensuring that the wounded and sick receive the treatment, including medical treatment, to which they are entitled.[75] Furthermore, on the basis of the last sentence of Article 30(4) of Additional Protocol I, ‘[a]ny aircraft seized which had been assigned as a permanent medical aircraft may be used thereafter only as a medical aircraft’. As indicated, this may be the case for some of the aircraft covered by Article 36.[76]
2477  Another scenario, with partially similar results in terms of how it is regulated, is when the examination reveals that the aircraft has been employed in activities which, while of a humanitarian nature, are not strictly medical and therefore do not benefit from the protection due under Article 36. In view of their humanitarian nature, it will be hard to argue that these activities are to be considered as acts harmful to the enemy. However, when it comes to aircraft assigned exclusively as medical aircraft on a temporary basis, they may result in the aircraft being treated as booty of war if it is a State aircraft (including a military aircraft) or captured as prize if it is a civilian aircraft. The Party which resorts to such measures remains responsible, at all times, for ensuring that the wounded and sick receive the treatment, including the medical treatment, to which they are entitled.[77]
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H. Paragraph 5: Involuntary landing
2478  An involuntary landing in the sense of Article 36(5) occurs when a medical aircraft is obliged to land in enemy or enemy-controlled territory owing to weather conditions, mechanical problems, or any cause (such as an attack directed against it) other than a summons to land issued on the basis of Article 36(4). When such a landing occurs, the adverse Party may take the wounded and sick and, depending on their status, the crew prisoner. The difference in treatment between involuntary landings and landings made in response to a summons was deemed necessary for military security. Provided the adverse Party ensures the care of its wounded and sick occupants, the aircraft itself becomes war booty, as would a medical vehicle on the ground in similar circumstances.[78] However, if the medical aircraft is used by a voluntary aid society acting on the basis of Article 26 or 27, it will be regarded as private property, and the right of requisition ‘shall not be exercised except in case of urgent necessity, and only after the welfare of the wounded and sick has been ensured’.[79]
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Select bibliography
Cummings, Edward R., ‘The Juridical Status of Medical Aircraft Under the Conventional Laws of War’, Military Law Review, Vol. 66, 1974, pp. 105–141.
de La Pradelle, Paul, ‘La protection de l’aviation sanitaire en temps de conflit’, Revue internationale de la Croix-Rouge, Vol. 49, No. 585, September 1967, pp. 391–405.
Des Gouttes, Paul, ‘Essai d’adaptation à la guerre aérienne des principes de la Convention de Genève du 6 juillet 1906’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 6, No. 72, December 1924, pp. 931–944.
Des Gouttes, Paul and Julliot, Charles-Louis, Vers une convention internationale appliquant à la guerre aérienne les principes de la Convention de Genève, Recueil de documents sur la neutralisation des aéronefs sanitaires, ICRC, Geneva, 1925.
Doswald-Beck, Louise, ‘The Protection of Medical Aircraft in International Law’, Israel Yearbook on Human Rights, Vol. 27, 1998, pp. 151–192.
Eberlin, Philippe, ‘The identification of medical aircraft in periods of armed conflict’, International Review of the Red Cross, Vol. 22, No. 229, August 1982, pp. 202–215.
Evrard, E., ‘Legal Protection of Aero-Medical Evacuation in War-Time’, International Review of the Red Cross, Vol. 6, No. 64, July 1966, pp. 343–361.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume 1: Rules, ICRC/Cambridge University Press, 2009, available at https://www.icrc.org/customary-ihl/eng/docs/v1.
Julliot, Charles-Louis, ‘Avions sanitaires et Convention de la Croix-Rouge’, Revue générale de droit international public, Vol. XIX, 1912, pp. 689–710.
Les aéronefs sanitaires et la guerre de 1914, Pedone, Paris, 1918.
Schöberl, Katja, ‘Buildings, Material, and Transports’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 825–838.
Spieker, Heike, ‘Medical Transportation’, version of March 2013, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.

1 - See ICRC, War Surgery: Working with Limited Resources in Armed Conflict and Other Situations of Violence, Vol. 1, ICRC, Geneva, 2009, p. 111. For further information on the difference between the concepts of ‘medical evacuation’ and ‘casualty evacuation’, see the commentary on Article 35, fn. 20.
2 - While treatment does not appear in the definition of medical aircraft, as found in Article 36, it is nowadays widely accepted that medical aircraft may contain on-board treatment facilities. For a discussion, see para. 2442.
3 - See Articles 12–13.
4 - Most importantly, see Articles 24–31 of Additional Protocol I. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Section L, ‘Specific Protection of Medical Aircraft’, Rules 75–87, and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Part VI, Section III, entitled ‘Medical Aircraft’, Rules 174–183.
5 - These provisions are: Articles 36–37 of the First Convention; Articles 39–40 of the Second Convention; and Article 22 of the Fourth Convention.
6 - Des Gouttes/Julliot, p. 2.
7 - In that year, Julliot considered the use of aircraft for medical evacuation; see Julliot, 1912, pp. 689–710. See also Julliot, 1918, pp. 14–20.
8 - Julliot, 1912, p. 689.
9 - Ibid. p. 702. See also Des Gouttes, p. 932.
10 - Hague Rules of Air Warfare (1923), Article 17.
11 - Des Gouttes/Julliot, p. 1: The idea of discussing the legal regime applicable to medical aircraft was raised by the French Government at the 11th International Conference of the Red Cross in Geneva in 1923. For an overview of the numerous activities on the subject from that period, see ICRC, Rapport général du Comité international de la Croix-Rouge sur son activité de 1923 à 1925, Geneva, 1925, pp. 18–21. See also 13th International Conference of the Red Cross, The Hague, 1928, Res. VII, ‘Aviation sanitaire’.
12 - Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, p. 120.
13 - Ibid.
14 - Geneva Convention on the Wounded and Sick (1929), Article 18: Aircraft used as means of medical transport shall enjoy the protection of the Convention during the period in which they are reserved exclusively for the evacuation of wounded and sick and the transport of medical personnel and material. They shall be painted white and shall bear, clearly marked, the distinctive emblem prescribed in Article 19, side by side with their national colours, on their lower and upper surfaces. In the absence of special and express permission, flying over the firing line, and over the zone situated in front of clearing or dressing stations, and generally over all enemy territory or territory occupied by the enemy, is prohibited. Medical aircraft shall obey every summons to land. In the event of a landing thus imposed, or of an involuntary landing in enemy territory and territory occupied by the enemy, the wounded and sick, as well as the medical personnel and material, including the aircraft, shall enjoy the privileges of the present Convention. The pilot, mechanics and wireless telegraph operators captured shall be sent back, on condition that they shall be employed until the close of hostilities in the medical service only. The full discussion on what eventually became Article 18 of the 1929 Geneva Convention can be found in Proceedings of the Geneva Diplomatic Conference of 1929, pp. 221–242 and 613–615. See also de La Pradelle, p. 392.
15 - Final Act of the Geneva Diplomatic Conference of 1929, Recommendation No. 3.
16 - Charles-Louis Julliot and Paul Des Gouttes, La Convention de Genève de 1929 et l’immunisation des appareils sanitaires aériens : Projet d’une convention additionnelle pour l’adaptation à la guerre aérienne des principes de la Convention de Genève, ICRC, Geneva, 1929.
17 - ‘Résolutions et vœux adoptés par la XIVe Conférence internationale de la Croix-Rouge, Résolution No. XXIII, Aviation sanitaire en temps de guerre’, in Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 12. No. 42, October 1930, p. 863. For a discussion of some of the issues at the time, see Draft revision of the 1929 Geneva Convention submitted by the ICRC to National Societies in 1937, pp. 11–12.
18 - See also Paul de La Pradelle, La Conférence diplomatique et les nouvelles Conventions de Genève du 12 août 1949, Les Éditions internationales, Paris, 1951, pp. 194–202.
19 - Minutes of the Preliminary Conference of National Societies of 1946, Vol. I, p. 41, see also p. 109; Report of the Preliminary Conference of National Societies of 1946, pp. 38–40.
20 - Report of the Conference of Government Experts of 1947, pp. 45–46.
21 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 85–86 (proposals by Finland and Monaco).
22 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 967.
23 - See Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 1(d): ‘“Aircraft” means any vehicle – whether manned or unmanned – that can derive support in the atmosphere from the reactions of the air (other than the reactions of the air against the earth’s surface), including vehicles with either fixed or rotary wings.’
24 - See also ibid. commentary on Rule 1(u), para. 4.
25 - For definitions of these concepts, see ibid. Rule 1(h) (civilian aircraft), 1(i) (civilian airliner), 1(x) (military aircraft) and 1(cc) (State aircraft).
26 - See also the commentary on Article 35, para. 2372. See also International Civil Aviation Organization, Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, Doc 9554-AN/932, 1990.
27 - See Article 8(j) of Additional Protocol I, which defines ‘medical aircraft’ as ‘any medical transports by air’. For its part, Article 8(g) of the Protocol defines ‘medical transports’ as ‘any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a Party to the conflict’. See also Rule 1(u) of the Manual on International Law Applicable to Air and Missile Warfare (2009), which defines ‘medical aircraft’ as ‘any aircraft permanently or temporarily assigned – by the competent authorities of a Belligerent Party – exclusively to aerial transportation or treatment of wounded, sick, or shipwrecked persons, and/or the transport of medical personnel and medical equipment or supplies’. It should be noted that Article 36 of the First Convention speaks of ‘exclusively employed’ and not, as is the case with the definitions in Additional Protocol I and the 2009 Manual on International Law Applicable to Air and Missile Warfare, of ‘assigned exclusively’.
28 - See Henckaerts/Doswald-Beck, commentary on Rule 29, p. 100, ‘Definition of medical transports’, with references to military manuals.
29 - See Article 22(5), the logic of which applies also to medical aircraft. Further, for ‘[a]ircraft exclusively employed for the removal of wounded and sick civilians, the infirm and maternity cases, or for the transport of medical personnel and equipment’, see Article 22 of the Fourth Convention. See also the definition of ‘wounded and sick’ in Article 8(a) of Additional Protocol I, which applies to ‘persons, whether military or civilian’.
30 - See the second sentence of Article 28(2) of Additional Protocol I: ‘[Medical aircraft] are prohibited from carrying any persons or cargo not included within the definition of Article 8, subparagraph (f).’ Article 8(f) of the Protocol defines ‘medical transportation’ as ‘the conveyance by land, water or air of the wounded, sick, shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies protected by the Conventions and by this Protocol’. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 86(a).
31 - See the definition of ‘medical aircraft’ in Rule 1(u) of the 2009 Manual on International Law Applicable to Air and Missile Warfare and paragraph 3 of the commentary on that provision. Similarly, see Schöberl, p. 829.
32 - Article 28(4) of Additional Protocol I. See also Rule 86(b) of the 2009 Manual on International Law Applicable to Air and Missile Warfare, the second sentence of which states that ‘[i]f medical aircraft nevertheless operate for [the purposes of searching for the wounded, sick and shipwrecked within areas of combat operations] they do so at their own risk’.
33 - See, similarly, the commentary on Article 35, paras 2368 and 2374. Contrast this, for example, with the definition of ‘hospital ships’ in Article 22(1) of the Second Convention, which need to have been ‘built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them’, as well as with the definition of ‘civilian hospitals’ in Article 18(1) of the Fourth Convention, which need to have been ‘organized to give care to the wounded and sick’.
34 - For an analysis of the term ‘humanitarian activities’, see the commentary on Article 9, section C.2.a. For an analysis of the possible consequences of a medical aircraft undertaking humanitarian activities other than medical, see para. 2458.
35 - See Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 83: ‘Subject to Rule 74, a medical aircraft loses its specific protection from attack if it is engaged in acts harmful to the enemy.’
36 - This may, of course, be the case. See also Article 8(k) of Additional Protocol I, defining, for the purposes of the Protocol, ‘permanent medical transports’ as ‘those assigned exclusively to medical purposes for an indeterminate period’.
37 - See also Article 8(k) of Additional Protocol I, defining, for the purposes of that Protocol, ‘temporary medical transports’ as ‘those devoted exclusively to medical purposes for limited periods during the whole of such periods’.
38 - On this particular scenario, see the commentary on Article 22, section E.
39 - See Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 82: A medical aircraft may be equipped with deflective means of defence (such as chaff or flares) and carry light individual weapons necessary to protect the aircraft, the medical personnel and the wounded, sick or shipwrecked on board. Carrying of the individual weapons of the wounded, sick or shipwrecked during their evacuation does not entail loss of protection.
40 - For details, see the commentary on Article 35, section C.2.b.
41 - The same requirement appears in Article 37(1), third sentence.
42 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 86.
43 - Article 6 of the First, Second and Third Conventions and Article 7 of the Fourth Convention. Article 6 of the First Convention lists agreements under Article 36 as special agreements.
44 - On the implications thereof, see Schöberl, p. 830: ‘Aircraft operating without or in violation of an agreement do so “at their own risk and peril” – which arguably refers to a factual risk rather than a loss of immunity in law.’
45 - See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 25: ‘Aircraft may be the object of attack only if they constitute military objectives.’ For a definition of ‘military objective’, see Article 52(2) of Additional Protocol I and ICRC Study on Customary International Humanitarian Law (2005), Rule 8.
46 - Doswald-Beck, pp. 159–160.
47 - Ibid. p. 161.
48 - In this regard, they are assisted by Article 36(4), first sentence: ‘Medical aircraft shall obey every summons to land.’
49 - See Additional Protocol I, Article 27. On the difference between objects and persons entitled to general protection versus those entitled to specific protection, see also Manual on International Law Applicable to Air and Missile Warfare (2009), Section K, commentary, para. 1.
50 - Additional Protocol I, Article 27(2).
51 - Ibid.
52 - See Additional Protocol I, Article 27(2), second sentence. See also Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 1033.
53 - For further clarification of what exactly is included in the requirement to ‘respect’ medical objects, see the commentary on Article 19, section C.2.b and the commentary on Article 35, section C.2.a.
54 - See Additional Protocol I, Article 28(1), second sentence.
55 - See also Additional Protocol I, Article 28(2).
56 - See also Additional Protocol I, Article 28(2).
57 - See Geneva Convention on the Wounded and Sick (1929), Article 18(2).
58 - An agreement with regard to ‘any other markings or means of identification’ constitutes a special agreement in the sense of Article 6 of the First Convention, and therefore needs to comply with the conditions of that provision.
59 - For a discussion of the different distinctive emblems, and their equal status under international humanitarian law, see the commentary on Article 38, section C.
60 - Additional Protocol I, Annex I (both in its initial version and as amended in 1993) deals with the identification of medical aircraft. See also Additional Protocol I, Article 18, and Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 76(b): ‘A medical aircraft ought to use additional means of identification where appropriate.’ For further information, see Eberlin, pp. 7–13.
61 - See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 76(c): ‘A temporary medical aircraft which cannot – either for lack of time or because of its characteristics – be marked with the distinctive emblem, ought to use the most effective means of identification available.’
62 - The same applies to aircraft which are on their way to collect wounded and sick persons but do not yet have any on board; see para. 2440.
63 - See the commentary on Article 39, para. 2565. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 76(d): ‘Means of identification are intended only to facilitate identification and do not, of themselves, confer protected status.’ Similarly, see Rules 72(c) and (d) of the Manual, the latter stating that ‘[t]he failure of medical and religious personnel, medical units and medical transports to display the distinctive emblem does not deprive them of their protected status’. In practice, if the enemy is aware that the unmarked aircraft is exclusively engaged in a medical function, attack would be prohibited based on the protected status of the aircraft’s occupants. Accordingly, while the absence of marking is not dispositive on the issue of whether attacking an aircraft is lawful, it does result in increased risk of misidentification and of the aircraft being construed as a lawful target and therefore attacked.
64 - For a definition of the term ‘occupied territory’, see the commentary on common Article 2, section E. Further, the Drafting Committee did not assess whether medical aircraft could fly over an enemy’s territorial waters, since ‘they had not wished to venture onto such uncertain ground’. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 141. Under contemporary international law of the sea, ships of all States enjoy the right of innocent passage through the territorial sea of other States (see Articles 17–26 of the 1982 UN Convention on the Law of the Sea). No parallel right exists for aircraft flying through the airspace above the said territorial sea.
65 - While medical aircraft typically have no need for protective agreements when flying over friendly territory, notification is recommended when ‘proposed flight plans of medical aircraft will bring them within the range of an adverse party’s surface-to-air weapons systems’ (United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 12.110.1). A similar recommendation existed in the 1929 Convention and largely focused on the concepts of ‘the firing line’ or ‘contact zone’. See Doswald-Beck, p. 169. These are not requirements for medical aircraft, merely suggestions in order to ensure their greater safety when operating in such areas. When medical aircraft need to fly over the territory of a neutral State, Article 37 of the First Convention applies.
66 - Thus, an agreement reached on the basis of Article 36(3) must contain the same details as an agreement reached on the basis of Article 36(1).
67 - See Additional Protocol I, Article 27(2).
68 - See Article 36(5).
69 - Doswald-Beck, p. 175.
70 - Similarly, see Additional Protocol I, Article 30(1), and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Rule 180.
71 - See Additional Protocol I, Article 27(2).
72 - On the impact of the provisions of Additional Protocol I on the interpretation of the Geneva Conventions with regard to the provisions of medical aircraft, see para. 2436.
73 - See Additional Protocol I, Article 30(3).
74 - See Additional Protocol I, Article 30(4).
75 - See Article 12.
76 - In this regard, there is an important difference, when they fall into enemy hands, as compared to the fate of military medical transports; see the commentary on Article 35, para. 2412. Similarly, see Schöberl, p. 830.
77 - See Article 12.
78 - See Article 35(2).
79 - Article 34(2).